“This court has repeatedly asserted that the mere fact 11 that a plaintiff has carried on certain daily activities does not in any 12 way detract from her credibility as to her overall disability.”
How later courts described this case
- “This court has repeatedly asserted that the mere fact 11 that a plaintiff has carried on certain daily activities does not in any 12 way detract from her credibility as to her overall disability.”
- An ALJ’s decision will not be reversed for errors that are harmless
- “A patient may do these 2 activities [walking in the mall and swimming] despite pain for 3 therapeutic reasons but that does not mean she could concentrate on work 4 despite the pain or could engage in similar activity for a longer period 5 given the pain involved.”
- “We are constrained to 26 review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v. Massanari, 249 F.3d 840, 847-48 (9th 27 Cir. 2001)
Written by the judges who cited it.
The opinion
1
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3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
11
12
NICOLE M. CASTRO, ) Case No. CV 19-01026-AS
13 )
Plaintiff, ) MEMORANDUM OPINION AND
14 )
v. ) ORDER OF REMAND
15 )
ANDREW M. SAUL, Commissioner )
16 of the Social Security )
Administration,1 )
17 )
Defendant. )
18 )
19
For the reasons discussed below, IT IS HEREBY ORDERED that,
20
pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded
21
for further administrative action consistent with this Opinion.
22
23
24
25
26
27
28 1 Andrew M. Saul is now the Commissioner of the Social Security
Administration and is substituted in for Acting Commissioner Nancy A.
Berryhill in this case. See Fed.R.Civ.P. 25(d).
1 PROCEEDINGS
2
3 On February 11, 2019, Plaintiff filed a Complaint seeking review of
4 the denial of her application for Disability Insurance Benefits.
5 (Docket Entry No. 1). The parties have consented to proceed before the
6 undersigned United States Magistrate Judge. (Docket Entry Nos. 11-12).
7 On July 23, 2019, Defendant filed an Answer along with the
8 Administrative Record (“AR”). (Docket Entry Nos. 17-18). On November
9 21, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting
10 forth their respective positions regarding Plaintiff’s claim. (Docket
11 Entry No. 26).
12
13 The Court has taken this matter under submission without oral
14 argument. See C.D. Cal. L.R. 7-15.
15
16
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
17
18
On February 8, 2016, Plaintiff, formerly employed as an
19
administrative assistant and receptionist (see AR 44-45, 147-52, 195-
20
97), filed an application for Disability Insurance Benefits, alleging an
21
inability to work because of a disabling condition since September 1,
22
2015. (See AR 126-27). The Commissioner denied Plaintiff’s
23
application, initially and on reconsideration. (AR 66-75). On November
24
1, 2017, Plaintiff, represented by counsel, testified at a hearing
25
before Administrative Law Judge (“ALJ”), James Carberry, who also heard
26
testimony from and vocational expert Ms. Cicero. (See AR 37-64).
27
28
1 On January 10, 2018, the ALJ issued a decision denying Plaintiff’s
2 application. (See AR 21-30). Applying the five-step sequential
3 process, the ALJ found at step one that Plaintiff had not engaged in
4 substantial gainful activity since September 1, 2015. (AR 23). At step
5 two, the ALJ determined that Plaintiff had the following severe
6 impairments -- “degenerative disc disease status post cervical fusion,
7 left shoulder degenerative joint disease, and fibromyalgia.” (AR 24).2
8 At step three, the ALJ determined that Plaintiff did not have an
9 impairment or combination of impairments that met or equaled the
10 severity of one of the listed impairments.3 (AR 25). The ALJ then
11 assessed Plaintiff’s residual functional capacity (“RFC”)4 and concluded
12 that she could perform light work5 with the following limitations:
13
14
15
16
17 2 The ALJ found that Plaintiff’s other impairments –- irritable
bowel syndrome, migraines, depression, and anxiety – were nonsevere.
18 (AR 24-25).
19 3 The ALJ specifically considered whether Plaintiff’s medically
determinable physical impairments met the requirements of listings 1.02
20 (major dysfunction of a joint(s)), and 1.04 (disorders of the spine).
The ALJ also considered whether Plaintiff’s chronic pain syndrome met or
21 was equivalent to any physical or mental impairment listing. (AR 25).
22 4 A Residual Functional Capacity is what a claimant can still do
despite existing exertional and nonexertional limitations. See 20
23 C.F.R. § 404.1545(a)(1).
24 5 “Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
25 Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves
26 sitting most of the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of light work, you
27 must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work,
28 unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
1 [Plaintiff] can lift, carry, push and pull 20 pounds
2 occasionally and 10 pounds frequently; can stand and walk 2
3 hours out of 8 hours; can sit for 6 hours out of 8 hours; can
4 never climb ladders, ropes or scaffolds; can occasionally
5 climb ramps and stairs; can occasionally balance, stoop,
6 kneel, crouch and crawl; and can frequently reach overhead
7 and perform gross and fine manipulation.
8 (AR 25-28).
9
At step four, the ALJ determined that Plaintiff was able to perform
10
past relevant work as an administrative assistant and receptionist as
11
generally performed (AR 28-29), and therefore found that Plaintiff was
12
not under a disability led within the meaning of the Social Security Act
13
from the alleged disability onset date, September 1, 2015, to the date
14
of the decision. (AR 29-30).
15
16
The Appeals Council denied Plaintiff’s request for review on
17
December 27, 2018. (See AR 5-9). Plaintiff now seeks judicial review
18
of the ALJ’s decision, which stands as the final decision of the
19
Commissioner. See 42 U.S.C. §§ 405(g), 1383(c).
20
21
STANDARD OF REVIEW
22
23
This Court reviews the Commissioner’s decision to determine if it
24
is free of legal error and supported by substantial evidence. See
25
Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial
26
evidence” is more than a mere scintilla, but less than a preponderance.
27
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine
28
whether substantial evidence supports a finding, “a court must consider
1 the record as a whole, weighing both evidence that supports and evidence
2 that detracts from the [Commissioner’s] conclusion.” Id. As a result,
3 “[w]here the evidence can reasonably support either affirming or
4 reversing [the ALJ’s] decision, [a court] may not substitute [its]
5 judgment for that of the [ALJ].” Id. at 1010 (citations omitted).6
6
7 PLAINTIFF’S CONTENTION
8
9 Plaintiff alleges that the ALJ erred in rejecting Plaintiff’s
10 testimony about her symptoms and limitations. (See Joint Stip. at 4-12,
11 17-18).
12
13 DISCUSSION
14
15 After consideration of the record as a whole, the Court finds that
16 Plaintiff’s claim of error warrants a remand for further consideration.
17
18 A. The ALJ Failed To Provide Clear and Convincing Reasons For
Rejecting Plaintiff’s Subjective Symptom Testimony
19
20
Plaintiff asserts that the ALJ did not provide clear and convincing
21
reasons for rejecting Plaintiff’s testimony about her symptoms and
22
limitations. (See Joint Stip. at 4-12, 17-18). Defendant asserts that
23
the ALJ provided specific and permissible reasons for finding Plaintiff
24
not fully credible. (See Joint Stip. at 12-17).
25
26
6 The harmless error rule applies to the review of
27 administrative decisions regarding disability. See McLeod v. Astrue,
640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676,
28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors
that are harmless).
1 1. Legal Standard
2
3 When assessing a claimant’s credibility regarding subjective pain
4 or intensity of symptoms, the ALJ must engage in a two-step analysis.
5
Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ
6
must determine if there is medical evidence of an impairment that could
7
reasonably produce the symptoms alleged. Id., (citing Garrison v.
8
Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “In this analysis, the
9
claimant is not required to show that her impairment could reasonably
10
be expected to cause the severity of the symptom she has alleged; she
11
need only show that it could reasonably have caused some degree of the
12
symptom.” Id. (emphasis in original) (citation omitted). “Nor must a
13
claimant produce objective medical evidence of the pain or fatigue
14
itself, or the severity thereof.” Id. (citation omitted).
15
16
17 If the claimant satisfies this first step, and there is no evidence
18 of malingering, the ALJ must provide specific, clear and convincing
19 reasons for rejecting the claimant’s testimony about the symptom
20 severity. Trevizo, 871 F.3d at 678 (citation omitted); see also Smolen,
21 80 F.3d at 1284 (“[T]he ALJ may reject the claimant’s testimony
22 regarding the severity of her symptoms only if he makes specific
23 findings stating clear and convincing reasons for doing so.”); Robbins
24 v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ
25
makes a finding of malingering based on affirmative evidence thereof,
26
he or she may only find an applicant not credible by making specific
27
findings as to credibility and stating clear and convincing reasons for
28
each.”). “This is not an easy requirement to meet: The clear and
1 convincing standard is the most demanding required in Social Security
2 cases.” Garrison, 759 F.3d at 1015 (citation omitted).
3
4
Where, as here, the ALJ finds that a claimant suffers from a
5
medically determinable physical or mental impairment that could
6
reasonably be expected to produce her alleged symptoms, the ALJ must
7
evaluate “the intensity and persistence of those symptoms to determine
8
the extent to which the symptoms limit an individual’s ability to
9
perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”)
10
16-3p, 2017 WL 5180304, at *3.1 SSR 16–3p superseded SSR 96–7p and
11
eliminated the term “credibility” from the Agency’s sub-regulatory
12
policy. However, the Ninth Circuit has noted that SSR 16–3p
13
14
15 makes clear what [the Ninth Circuit’s] precedent already
required: that assessments of an individual’s testimony by an
16 ALJ are designed to “evaluate the intensity and persistence of
symptoms after the ALJ finds that the individual has a
17 medically determinable impairment(s) that could reasonably be
expected to produce those symptoms, and not to delve into
18 wide-ranging scrutiny of the claimant’s character and apparent
truthfulness.
19
20 Trevizo, 871 F.3d at 679 n.5 (quoting SSR 16–3p) (alterations omitted).
21
22 In discrediting the claimant’s subjective symptom testimony, the
23
ALJ may consider: “ordinary techniques of credibility evaluation, such
24
as . . . prior inconsistent statements concerning the symptoms, and
25
26 1 SSR 16-3p, which superseded SSR 96-7p, is applicable to this
case, because SSR 16-3p, which became effective on March 28, 2016, was
27
in effect at the time of the Appeal Council’s December 27, 2018 denial
of Plaintiff's request for review. Nevertheless, the regulations on
28
evaluating a claimant’s symptoms, including pain, see 20 C.F.R.
§§ 404.1529 and 416.929, have not changed.
1
other testimony by the claimant that appears less than candid;
2
unexplained or inadequately explained failure to seek treatment or to
3
follow a prescribed course of treatment; and the claimant’s daily
4
activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
5
(citation omitted). Inconsistencies between a claimant’s testimony and
6
conduct, or internal contradictions in the claimant’s testimony, also
7
may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir.
8
2014); In addition, the ALJ may consider the observations of treating
9
and examining physicians regarding, among other matters, the functional
10
11 restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d at
12 1284; accord Burrell, 775 F.3d at 1137. However, it is improper for an
13 ALJ to reject subjective testimony based “solely” on its inconsistencies
14 with the objective medical evidence presented. Bray v. Comm’r of Soc.
15 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation omitted).
16
17 Further, the ALJ must make a credibility determination with
18 findings that are “sufficiently specific to permit the court to conclude
19
that the ALJ did not arbitrarily discredit claimant’s testimony.”
20
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation
21
omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)
22
(“A finding that a claimant’s testimony is not credible must be
23
sufficiently specific to allow a reviewing court to conclude the
24
adjudicator rejected the claimant’s testimony on permissible grounds and
25
did not arbitrarily discredit a claimant’s testimony regarding pain.”)
26
(citation omitted). Although an ALJ’s interpretation of a claimant’s
27
testimony may not be the only reasonable one, if it is supported by
28
8
1 substantial evidence, “it is not [the court’s] role to second-guess it.”
2 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
3
4
2. Plaintiff’s Subjective Statements and Testimony
5
6
Plaintiff made the following statements in an Exertion
7
Questionnaire dated April 13, 2016 (see AR 160-62):
8
She lives with her husband in a house. (AR 160).
9
The symptoms that prevent her from carrying out a
10 normal workday are difficulty sitting (she gets sharp pains
if not careful with how she sits), difficulty retaining
11 information, low energy, inability to follow through with
tasks, and difficulty concentrating/keeping focus. (AR
12 160).
13
On an average day, she showers, cleans her house,
washes dishes, and runs errands, all of which make her feel
14
extremely fatigued and ready for a nap. She does her own
15 grocery shopping a couple of times a week. Cleaning her
house, which includes straightening up, vacuuming, washing
16 dishes, dusting, sweeping and mopping, takes her all day.
She is able to do 15 to 20 minutes of housework before she
17 needs a break due to pain. She can do gardening for 15 to
20 minutes before her back starts hurting and she needs to
18 take a break; it may take her a couple of days to complete
the gardening. Before becoming disabled, she was able to do
19 these chores without becoming tired and losing interest.
She is able to drive a car for 10 minutes from her house
20 (under a doctor’s orders) and comfortably for 15 to 20
minutes under other circumstances. (AR 160-62).
21
When asked how far she walks and how long it takes her
22 to walk that distance, she stated that, at this point, she
does not exercise except for light yoga. She is not able to
23
climb stairs. She is able to lift 5 to 10 pounds. She is
able to carry a jug of milk to the grocery store counter or
24
grocery cart. (AR 160-61).
25
She sleeps for 5 to 6 hours a night. She requires a
26 rest period or nap of 15 to 30 minutes during the day. She
takes medications -- gabapentin, cyclebenzaprine,
27 duloxetine, and hydrocodone – for her condition. She uses a
brace as much as possible as a result of her spinal fusion
28 surgery in February 2016. (AR 162)
1 Plaintiff gave the following testimony at the administrative
2 hearing on November 1, 2017 (see AR 40-56, 58-62):
3
She lives with her husband in a house. She does not
have any children. She completed high school. She did not
4
go to college; she went to a vocational dental school. She
5 is 5 feet, 5 inches tall, and weighs approximately 168
pounds (she had lost 23 pounds). She worked in a dental
6 office, but became allergic to the chemicals and the latex
gloves (her doctor told her to find another profession).
7 She last worked (through a temporary employment agency) in
2015 for two months as an administrative assistant at
8 Innovative Bedding; she was “let go” (not fired) from that
position because she got migraine headaches which caused her
9 to vomit and urinate on herself, and because her severe pain
caused her to be forgetful and to misunderstand things.
10 Before working at Innovative Bedding, she worked (through a
temporary employment agency) as an administrative assistant
11 at the following businesses: Argo Spring, Cordova Bolt
(where she also worked as a receptionist and was not able to
12 function due to severe pain in her right arm and lower
back), WTF Communications (the business shut down), All-Pro
13
Precision (she left for a better job), and MGM Converters as
a receptionist (the business shut down). When she worked as
14
a receptionist and as an administrative assistant, she had
15 to lift about 30 pounds. (AR 40-41, 43-47, 52-53, 55-56).
16 She had her first surgery in November 2014 following
longstanding shoulder pain which caused her sleep issues.
17 After X-rays were taken, her doctors initially told her she
had arthritis, and then Dr. Haffessey told her that she had
18 fibromalgia. Following additional tests and an MRI, she had
surgery, however, the surgery did not result in the relief
19 she was looking for. (AR 49-50).
20 She had her second surgery in February 2016. The
second surgery also did not work, and maybe made things
21 worse, because she is in constant pain. (AR 50).
22 For her back, she walked, did physical therapy, put
heat on (her lower back), and rode a stationary bike
23
(approximately 7 minutes). (AR 42-43).
24
25 She is unable to work as a receptionist because of her
migraine headaches (she has to stay in bed), and her
26 inabilities to sit, move around, file, do repetitive
movements, and her need for naps. She gets migraine
27 headaches lasting 1 to 3 days every other week. For relief,
she lies down in a dark room, takes medication, tries to
28 sleep, and uses an ice pack. She spoke to the neurologist
who performed her surgeries about her migraine headaches
1 which became worse after the surgeries. She has never gone
to the hospital as a result of her migraine headaches. (AR
2 54, 59-60-61).
3
She is unable to work in a factory or as a packer
because she has a sharp pain when she does repetitive
4
motions (such as picking up the phone or bending) or when
5 she stretches her arm out (the pain makes her unable to
think and to focus on the work), because she can only sit
6 and stand for approximately 15 to 20 minutes, and because
she can only lift 5 pounds. (AR 47-48).
7
For her back, she walked, did physical therapy, put
8 heat on (her lower back), and rode a stationary bike
(approximately 7 minutes). (AR 42-43).
9
She is able to walk for 15 to 20 minutes. She walks
10 around the block (a huge block) of her house. She is able
to lift 5 pounds. (AR 42).
11
She is able to drive (she drove to the hearing), but
12 has some difficulty turning to her right so she generally
does not drive on the freeway and does not drive much. She
13
is able to fill the car with gasoline, but she does not do
it much. She sometimes dresses herself (she dressed herself
14
for the hearing). She is able to take showers, but she has
15 pain, difficulty balancing, and difficulty putting her hands
up on her head to wash her hair. She and her husband both
16 do the shopping. She cooks dinner in the afternoon (for her
husband), because she has to take a nap at some point. She
17 tidies up around the house. Her husband takes out the
trash, but she will do it if she has to. She does not
18 travel because she does not have the money, and because it
likely would be a waste due to her not feeling well. (AR
19 50-52, 54-55).
20 She sleeps about 4 or 5 hours a night because of
insomnia, and takes about a 1 to 1 1/2 hour nap. She takes
21 naps because of fatigue and pain. Her doctor gave her
medicine for insomnia. (AR 58-59).
22
23
24
25
26
27
28
1 3. The ALJ’s Credibility Findings
2
3 After briefly summarizing Plaintiff’s testimony (see AR 26),2 the
4
ALJ stated: “After careful consideration of the evidence, the
5
undersigned finds that the claimant’s medically determinable impairments
6
could reasonably be expected to produce the above alleged symptoms;
7
however, the claimant’s statements concerning the intensity, persistence
8
and limiting effects of these symptoms are not entirely consistent with
9
the medical evidence and other evidence in the record for the reasons
10
explained in this decision. Accordingly, these statements have been
11
found to affect the claimant’s ability to work only to the extent that
12
they can reasonably be accepted as consistent with the objective medical
13
and other evidence.” (AR 26).
14
15
16 The ALJ then addressed Plaintiff’s testimony as follows:
17
18 As for the claimant’s statements about the intensity,
19 persistence, and limiting effects of his or her symptoms, they
20
21
2 The ALJ summarized Plaintiff’s testimony as follows:
22
The claimant testified that she has had two spinal
surgeries. She stated that she stopped working because of
23
migraine headaches that caused vomiting and urination. She
stated that she cannot work because she cannot focus on
24
anything except for her pain. She stated that she has pain in
her shoulders and fibromyalgia. [¶] The claimant stated that
25
she can walk 20 minutes and lift five pounds. She stated that
she tried physical therapy and uses a stationary bike for
26
about seven minutes. She stated that she can shop, cook, and
do light cleaning. She stated that she can also pump gas.
27
She stated that she needs to take naps during the day for up
to two hours and does not sleep well at night.
28
(AR 26).
1 are inconsistent. The undersigned finds that the statements
2 made by the claimant are not fully corroborated by the
3
evidence and gives them weight accordingly. The claimant’s
4
activities of daily living indicate that the claimant is more
5
functional than alleged. The claimant is able to perform some
6
household chores, cook, drive, pump her own gas, watch
7
television, read books, and go shopping [AR 291-301]. The
8
claimant testified that she can walk up to 30 minutes a day
9
and use a stationary bike. In February 2016, the claimant
10
reported being able to walk four blocks and two flights of
11
stairs without symptoms [AR 265]. The claimant also reported
12
that swimming helped with her pain [AR 490]. There is no
13
indication that the claimant performed these tasks with an
14
15 assistive device or while not putting her arms overhead for a
16 stroke. [¶] The medical evidence does not support the
17 claimant’s statements.
18
19 (AR 27).
20
21 After discussing the medical evidence in the record, including the
22 opinions of Plaintiff’s neurosurgeon and of consultative examiners (see
23
AR 27-28), the ALJ stated: “The undersigned acknowledges that each
24
individual has a different threshold with respect to pain symptoms.
25
However, the undersigned must consider the consistency of the claimant’s
26
subjective complaints with the medical evidence, and in this case, the
27
medical evidence does not support a finding that the claimant’s
28
functioning is so limited as to preclude all work.” (AR 28).
1 4. Analysis
2
3
As set forth below, the ALJ failed to provide clear and convincing
4
reasons for discrediting Plaintiff’s testimony about the intensity,
5
persistence and limiting effects of her pain and symptoms.3
6
7
First, the ALJ failed to “specifically identify ‘what testimony is
8
not credible and what evidence undermines [Plaintiff’s] complaints.’”
9
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)(quoting Lester v.
10
Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, 80 F.3d at
11
1284 (“The ALJ must state specifically what symptom testimony is not
12
credible and what facts in the record lead to that conclusion”).
13
14
15 Second, the ALJ improperly discounted Plaintiff’s testimony about
16 her symptoms and limitations based on her ability to perform certain
17 daily activities, such as doing some household chores, cooking, driving,
18 pumping gas, watching television, reading books, shopping, walking up to
19 30 minutes, and using a stationary bike. “AlJs must be especially
20 cautious in concluding that daily activities are inconsistent with
21 [subjective symptom testimony], because impairments that would
22 unquestionably preclude work and all the pressures of a workplace
23
24
3 The Court will not consider reasons for discounting
Plaintiff’s subjective symptom testimony that were not given by the ALJ
25
in the decision (see Joint Stip. at 13, 15-16, ). See Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)(“We are constrained to
26
review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332
U.S. 194, 196 (1947) and Pinto v. Massanari, 249 F.3d 840, 847-48 (9th
27
Cir. 2001)); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We
review only the reasons provided by the ALJ in the disability
28
determination and may not affirm the ALJ on a ground upon which he did
not rely.”).
1 environment will often be consistent with doing more than merely resting
2 in bed all day.” Garrison, 759 F.3d at 1016. If a claimant’s level of
3
activity is inconsistent with the claimant’s asserted limitations, it
4
has a bearing on credibility. Id. “Though inconsistent daily
5
activities may provide a justification for rejecting symptom testimony,
6
the mere fact that a plaintiff has carried on certain daily activities
7
does not in any way detract from her credibility as to her overall
8
disability.” Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017)
9
(citation and alterations omitted); see Orn v. Astrue, 495 F.3d 625, 639
10
(9th Cir. 2007) (“This court has repeatedly asserted that the mere fact
11
that a plaintiff has carried on certain daily activities does not in any
12
way detract from her credibility as to her overall disability.”)
13
(citation and alterations omitted). Indeed, a claimant “does not need
14
15 to be utterly incapacitated in order to be disabled.” Benecke v.
16 Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (citation omitted).
17 Reddick, 157 F3d 715, 722 (9th Cir. 1998) (“Only if the level of
18 activity were inconsistent with the Claimant’s claimed limitations would
19 these activities have any bearing on Claimant’s credibility.”).
20
21 While a plaintiff’s ability to spend a “substantial part” of his or
22 her day engaged in pursuits involving the performance of physical
23
functions that are transferable to a work setting may be sufficient to
24
discredit him or her, here, there is no evidence that Plaintiff was
25
spending a substantial part of her day engaged in these activities or
26
that the physical demands of tasks such as doing some household chores,
27
cooking, driving, pumping gas, watching television, reading books, and
28
shopping were transferable to a work setting. See Ghanim v. Colvin, 763
1 F.3d 1154, 1165 (9th Cir. 2014)(“However, there is no indication here
2 that the limited activities Ghanim engaged in, often with the help of a
3
friend, either comprised a ‘substantial portion’ of Ghanim’s day, or
4
were ‘transferrable’ to a work environment.”). Here, the ALJ did not
5
elicit any testimony at the hearing about the time and effort involved
6
in Plaintiff’s daily activities or make any determination about how
7
Plaintiff’s ability to engage in these activities would enable her to
8
perform certain work functions or were inconsistent with her claimed
9
functional limitations. For example, it is not clear whether the ALJ
10
considered Plaintiff’s statement that washing dishes, showering,
11
cleaning house, and running errands makes her extremely tired and ready
12
for a nap, that it takes her all day to clean the house, which included
13
straightening up, vacuuming, washing dishes, dusting, sweeping and
14
15 mopping, and that she can only do 15 to 20 minutes of housework before
16 she needs a break due to pain, 15 or 20 minutes of gardening before she
17 needs a break due to pain (see AR 161-62: Plaintiff’s Exertion
18 Questionnaire), drive for 15 to 20 minutes and only 10 minutes from her
19 house, and that the heaviest thing she can carry when grocery shopping
20 is a jug of milk (see AR 161: Plaintiff’s Exertion Questionnaire) or
21 Plaintiff’s testimony at the hearing that she has difficulty driving and
22 generally does not drive or pump gas, and tries to cook dinner in the
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afternoon because she has to take naps (see AR 51-52: Hearing Testimony)
24
in determining the degree to which such daily activities were
25
inconsistent with her testimony regarding her symptoms and limitations.
26
See also Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600
27
(9th Cir. 1999)(“If a claimant is able to spend a substantial part of
28
his day engaged in pursuits involving the performance of physical
1 functions that are transferable to a work setting, a specific finding as
2 to this fact may be sufficient to discredit a claimant’s allegations.”).
3
4
The ALJ’s finding that Plaintiff’s ability to walk and climb stairs
5
was inconsistent with her claimed limitations was not a clear and
6
convincing reason to discount her credibility. At the time of her
7
February 2, 2016 preoperative visit, Plaintiff stated she was able to
8
walk four blocks and two flights of stairs without symptoms. (AR 265).
9
However, in the April 3, 2016 Exertion Questionnaire, Plaintiff stated
10
she was not able to walk or climb stairs, and at the November 1, 2017
11
hearing (AR 160-61), Plaintiff stated she could walk only one huge block
12
(which took about 15 to 20 minutes) (AR 42). Plaintiff’s testimony was
13
not inconsistent with her preoperative visit statement, because
14
15 Plaintiff testified her condition worsened after the surgeries (AR 50).
16
17 The ALJ’s finding that Plaintiff’s testimony that she could not put
18 her arms over her head (AR 51) was inconsistent with her statement to
19 a doctor that swimming helped with pain and the lack of any indication
20 in the record that Plaintiff swam strokes without putting her arms over
21 her head, was not a clear and convincing reason for discounting
22 Plaintiff’s credibility. While Plaintiff told a pain management doctor
23
on June 30, 2017 that swimming helped with fibromyalgia, Plaintiff also
24
stated that her “pain is getting worse now.” (AR 490). Moreover, there
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is no indication in the record about how or for how long Plaintiff swam,
26
and the ALJ at the hearing did not ask Plaintiff about her swimming.
27
Finally, swimming for therapeutic purposes may not have been
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inconsistent with Plaintiff’s symptoms and limitations. See Vertigan v.
1 Halter, 260 F3d 1044, 1050 (9th Cir. 2001) (“A patient may do these
2 activities [walking in the mall and swimming] despite pain for
3
therapeutic reasons but that does not mean she could concentrate on work
4
despite the pain or could engage in similar activity for a longer period
5
given the pain involved.”); www.mayoclinic.org/diseases-
6
conditions/fibromyalgia/diagnosis-treatment/drc-2035475 (“A physical
7
therapist can teach you exercises that will improve your strength,
8
flexibility and stamina. Water-based exercises might be particularly
9
helpful.”).
10
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Third, while the ALJ also found there was a lack of objective
12
medical evidence supporting Plaintiff’s testimony concerning her
13
symptoms and limitations, this factor cannot, by itself, support an
14
15 adverse finding about Plaintiff’s testimony. See Trevizo v. Berryhill,
16 871 F.3d 664, 679 (9th Cir. 2017)(once a claimant demonstrates medical
17 evidence of an underlying impairment, “an ALJ ‘may not disregard [a
18 claimant’s testimony] solely because it is not substantiated
19 affirmatively by objective medical evidence.’”; quoting Robbins v. Soc.
20 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)); see also SSR 16-3p,
21 2017 WL 5180304, *7 (“We must consider whether an individual’s
22 statements about the intensity, persistence, and limiting effects of his
23
or her symptoms are consistent with the medical signs and laboratory
24
findings of record. . . . However, we will not disregard an
25
individual’s statements about the intensity, persistence, and limiting
26
effects of symptoms solely because the objective medical evidence does
27
not substantiate the degree of impairment related-symptoms alleged by
28
the individual.”).
1 Because the Court finds that the the ALJ did not discount
2 Plaintiff’s symptom testimony on legally permissible grounds, the Court
3
is unable to defer to the ALJ’s credibility determination. Cf. Flaten
4
v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir.
5
1995)(the court will defer to the ALJ’s credibility determinations when
6
they are appropriately supported in the record by specific findings
7
justifying that decision)(citations omitted).
8
9
B. Remand Is Warranted
10
11
The decision whether to remand for further proceedings or order an
12
immediate award of benefits is within the district court’s discretion.
13
Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
14
15 useful purpose would be served by further administrative proceedings, or
16 where the record has been fully developed, it is appropriate to exercise
17 this discretion to direct an immediate award of benefits. Id. at 1179
18 (“[T]he decision of whether to remand for further proceedings turns upon
19 the likely utility of such proceedings.”). However, where, as here, the
20 circumstances of the case suggest that further administrative review
21 could remedy the Commissioner’s errors, remand is appropriate. McLeod
22 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, 211 F.3d
23
at 1179-81.
24
25
Since the ALJ failed to properly assess Plaintiff’s symptom
26
testimony, remand is appropriate. Because outstanding issues must be
27
resolved before a determination of disability can be made, and “when the
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record as a whole creates serious doubt as to whether the [Plaintiff]
1 is, in fact, disabled within the meaning of the Social Security Act,”
2 further administrative proceedings would serve a useful purpose and
3
remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir.
4
2014)(citations omitted).
5
6
ORDER
7
8
For the foregoing reasons, the decision of the Commissioner is
9
reversed, and the matter is remanded for further proceedings pursuant to
10
Sentence 4 of 42 U.S.C. § 405(g).
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12
LET JUDGMENT BE ENTERED ACCORDINGLY.
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15 DATED: January 7, 2020
16
17 /s/
ALKA SAGAR
18 UNITED STATES MAGISTRATE JUDGE
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