Gina M. Corbin v. Andrew M. Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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GINA C.,1 ) NO. EDCV 19-1233-KS

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Plaintiff, )

12 v. )

MEMORANDUM OPINION AND ORDER

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ANDREW M. SAUL, Commissioner

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of Social Security, )

15 Defendant. )

16 _________________________________ )

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18 INTRODUCTION

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20 Gina C. (“Plaintiff”) filed a Complaint on July 3, 2019, seeking review of the denial of

21 her application for a period of disability and disability insurance (“DI”) and supplemental

22 security income (“SSI”). On August 7, 2019, the parties consented, pursuant to 28 U.S.C. §

23 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12,

24 13.) On April 9, 2020, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. No. 19.)

25 Plaintiff seeks an order reversing the Commissioner’s decision and awarding benefits, or, in

26 the alternative, remanding for further proceedings. (Joint Stip. at 21.) The Commissioner

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1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) and the recommendation of the

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Committee on Court Administration and Case Management of the Judicial Conference of the United States.

1 requests that the ALJ’s decision be affirmed or, in the alternative, remanded for further

2 proceedings. (See id. at 22.) The Court has taken the matter under submission without oral

3 argument.

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5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS

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7 In January and February 2015, Plaintiff, who was born on September 14, 1965,

8 protectively filed applications for DI and SSI respectively.2 (See Administrative Record

9 (“AR”) 15, 196, 202; Joint Stip. at 2.) Plaintiff alleged disability commencing December 27,

10 2014 due to: arthritis; nausea; vomiting; headaches; depression; lupus; fibromyalgia;

11 scleroderma; connective tissue disorder; and “heart issues.” (AR 239.) Plaintiff previously

12 worked as an office assistant (DOT 239.567-010). (AR 23, 51, 231.) The Commissioner

13 denied Plaintiff’s applications initially (AR 78-79) and on reconsideration (AR 106-07).

14 Plaintiff then requested an administrative hearing. (See AR 139.) On July 24, 2018,

15 Administrative Law Judge Paul Isherwood (the “ALJ”) held a hearing at which Plaintiff, who

16 was represented by counsel, testified as did vocational expert Luis O. Mas (the “VE”). (AR

17 31-55; see also AR 15 (clarifying VE’s name).) On August 16, 2018, the ALJ issued an

18 unfavorable decision, denying Plaintiff’s applications. (AR 12-24.) On May 17, 2019, the

19 Appeals Council denied Plaintiff’s request for review. (AR 1-6.)

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21 SUMMARY OF ADMINISTRATIVE DECISION

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23 The ALJ found that Plaintiff met the insured status requirements of the Social Security

24 Act through December 31, 2019. (AR 17.) The ALJ further found that Plaintiff had not

25 engaged in substantial gainful activity since the alleged onset date of December 27, 2014. (AR

26 17.) The ALJ determined that Plaintiff had the following severe impairments: “lupus; and

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2 Plaintiff was 50 years old on the alleged onset date and was thus defined as a person closely approaching advanced

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age under agency regulations. See 20 C.F.R. §§ 404.1563(d), 416.963(d).

1 thyroid cancer/Hashimoto’s.” (AR 17.) In reaching that conclusion, the ALJ found that

2 Plaintiff had other medically determinable impairments—migraines, GERD, scoliosis, and

3 mood disorder—but he determined that these impairments were non-severe for the purposes

4 of step two of the sequential analysis. (AR 18-19.) The ALJ also concluded that Plaintiff did

5 not have an impairment or combination of impairments that met or medically equaled the

6 severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§

7 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (AR 19.) The ALJ

8 determined that, during the relevant period, Plaintiff had the residual functional capacity

9 (“RFC”) to perform a full range of medium work.3 (AR 19.)

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11 The ALJ found that Plaintiff was able to perform her past relevant work as an office

12 assistant (DOT 239.567-010). (AR 23.) Accordingly, the ALJ determined that Plaintiff had

13 not been under a disability, as defined in the Social Security Act, from the alleged onset date

14 through the date of his decision, August 16, 2018. (AR 23-24.)

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16 STANDARD OF REVIEW

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18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to determine

19 whether it is free from legal error and supported by substantial evidence in the record as a

20 whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than

21 a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind

22 might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of Soc. Sec., 740

23 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the evidence is

24 susceptible to more than one rational interpretation, we must uphold the ALJ’s findings if they

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3 Medium work involves lifting up to 50 pounds at a time with frequent lifting or carrying of objects weighing up

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to 25 pounds. SOCIALSECURITY ADMINISTRATION,PROGRAM OPERATIONS MANUAL SYSTEM (“POMS”) DI 25001.001.

Medium work also usually requires the following: walking or standing for approximately six hours in an eight hour

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workday; frequent stooping and crouching, the ability to grasp, hold, and turn objects; the ability to frequently lift or carry

objects weighing 25 pounds, which is often more critical than being able to lift up to 50 pounds at a time; and the capacity

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to perform sedentary and light work. Id.

1 are supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d

2 1104, 1110 (9th Cir. 2012).

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4 Although this Court cannot substitute its discretion for the Commissioner’s, the Court

5 nonetheless must review the record as a whole, “weighing both the evidence that supports and

6 the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. Astrue, 504

7 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); Desrosiers v.

8 Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible

9 for determining credibility, resolving conflicts in medical testimony, and for resolving

10 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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12 The Court will uphold the Commissioner’s decision when the evidence is susceptible to

13 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

14 2005). However, the Court may review only the reasons stated by the ALJ in her decision

15 “and may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn, 495 F.3d at

16 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not

17 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error

18 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error,

19 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487,

20 492 (9th Cir. 2015) (internal citations omitted).

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1 DISCUSSION

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3 There is one issue in dispute: whether the ALJ properly considered Plaintiff’s

4 statements about her symptoms and limitations. (Joint Stip. at 4.)

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6 I. Plaintiff’s Statements

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8 There are two sources of Plaintiff’s statements about her symptoms and limitations: one,

9 Plaintiff’s written statements in an April 1, 2015 Adult Function Report; and, two, Plaintiff’s

10 oral statements during the July 24, 2018 administrative hearing.

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12 A. April 1, 2015 Adult Function Report

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14 Plaintiff alleges a disability onset date of December 27, 2014. On April 1, 2015, Plaintiff

15 completed an Adult Function Report, in which she reported that every day she wakes up in

16 “extreme pain,” and, most days, she “can barely walk or get out of bed.” (AR 265.) She

17 reported that as soon as she opens her eyes, she starts dry heaving and/or throwing up and

18 often has a headache. (AR 265.) She spends most of her days in her bed, sleeping, watching

19 TV, or playing on an iPad. (AR 266.) She reported that she also goes outside at least once a

20 day and can both walk and drive a car. (AR 268.) Once a week she takes her grandson to

21 school, and she also helps him with his homework. (AR 266.) She shops by computer once

22 or twice a week and “often drives kids to store to shop for [her].” (AR 268.) However, when

23 asked to list the places she goes on a regular basis, Plaintiff wrote “none.” (AR 268.)

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25 Plaintiff reported that “Reanna” feeds the animals, prepares meals, and does house

26 chores. (AR 266.) She wrote that her impairments make dressing “painful,” bathing “take[]

27 longer,” and getting on and off the toilet “painful.” (AR 266.) She wrote that she can prepare

28 simple meals “once in a while” but finds it hard to stand for long periods of time. (AR 267.)

1 She similarly reported that she can “sometimes” wash dishes, clean the kitchen, and do a little

2 laundry, but she needs someone else to finish if she starts vomiting unexpectedly or her bones

3 “stiffen up” (AR 267.)

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5 Plaintiff reported that she can lift approximately 10 pounds, cannot get back up if she

6 squats, needs help sitting up if she bends, and cannot stand for very long. (AR 269.) Plaintiff

7 stated that her illness is unpredictable and, although she does have good days, most days are

8 very bad and painful. (AR 271.) Similarly, she wrote that “sometimes” she can do normal

9 things but she then has to rest often. (AR 271.)

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11 B. July 24, 2018 Hearing Testimony

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13 Three years later, on July 24, 2018, Plaintiff testified at the administrative hearing. She

14 testified that she lives with her 17-year old grandson. (AR 36.) Plaintiff testified that, at 17,

15 almost 18, years old, her grandson mostly takes care of himself and helps Plaintiff, but she has

16 to make sure to get him to school “and stuff.” (AR 45.) She stated that when she feels okay,

17 her other grandkids come over and hang out at her house so that she can spend some time with

18 them. (AR 46.)

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20 Plaintiff testified that she was seeing 10 or 11 different doctors for lupus, arthritis,

21 Hashimoto’s, and connective tissue disease. (AR 36.) She testified that her medication causes

22 nausea and fatigue. (AR 37.) She testified that she naps during the day, sometimes for just

23 half an hour and sometimes for a couple of hours. (AR 37.) She testified that getting up from

24 bed in the morning—“getting up from laying down position”—was painful. (AR 37.) She

25 testified that she was able to shower as long as she sat down. (AR 38.) She testified that she

26 is able to dress herself but it takes a little bit of time because “stretching certain positions” is

27 painful. (AR 38.) The ALJ observed that Plaintiff “seem[ed] to fidget a lot when . . . sitting”

28 (AR 38), and Plaintiff confirmed that sitting was “painful” (AR 39). Plaintiff stated that when

1 she stands, her back feels better but she starts to get lightheaded and dizzy and feels like she

2 is going to pass out. (AR 39.) When asked what the most comfortable position is for her,

3 Plaintiff answered “laying [sic] down in bed.” (AR 39.) The ALJ asked Plaintiff how long

4 she could sit before she became uncomfortable, and she indicated that the 45-minute drive to

5 the hearing had been “too long” (AR 39), and she had needed to pull over mid-way to stretch

6 (AR 47).

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8 Plaintiff testified that she goes to the grocery store once or twice a week and usually

9 tries to get in and out quickly, although she can stay longer if she can ride an electric mobility

10 cart. (AR 40.) She testified that her grandson usually carries groceries from the cart to the car

11 or brings them in the house, but “sometimes” Plaintiff is able to do it. (AR 41.) Plaintiff

12 testified that she also tried to do other chores around the house and has set stools up around

13 the house so that she can sit while she does things, like making something to eat. (AR 41.)

14 Plaintiff can do these sorts of activities around the house for 30 minutes before needing to lie

15 down and rest. (AR 41.)

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17 Plaintiff testified that she sees her primary physician once a month and has, in total,

18 approximately five medical appointments a month. (AR 42.) She testified that she usually

19 drives to her appointments but sometimes has one of her kids take her, depending on how she

20 is feeling. (AR 47.)

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22 When asked why she thinks she cannot work, Plaintiff testified, “I’m sick constantly. I

23 mean constantly like pain. I could throw up at any given second. I’ve just - - I can’t even sit

24 still for very long because it hurts. It just - - I’m not me anymore.” (AR 48.)

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1 C. ALJ’s Decision

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3 The ALJ found that Plaintiff’s medically determinable impairments could reasonably be

4 expected to cause the alleged symptoms, her statements concerning the intensity, persistence,

5 and limiting effects of her symptoms were not entirely consistent with the evidence in the

6 record. (AR 21.) First, the ALJ observed that her statements were inconsistent with the

7 objective medical evidence, which showed “mild and limited” examination findings, including

8 a normal gait, normal muscle strength, and normal sensation. (AR 20.) Second, the ALJ

9 observed that Plaintiff performed activities—namely, driving, doing household chores, going

10 to the grocery store, using the computer, and fixing simple meals—that were inconsistent with

11 her allegations of debilitating symptoms. (AR 20.)

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13 D. Applicable Law

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15 An ALJ must make two findings before discounting a claimant’s statements regarding

16 the severity and persistence of her symptoms. See Treichler v. Comm’r of Soc. Sec., 775 F.3d

17 1090, 1102 (9th Cir. 2014). “First, the ALJ must determine whether the claimant has presented

18 objective medical evidence of an underlying impairment which could reasonably be expected

19 to produce the pain or other symptoms alleged.” Id. (quoting Lingenfelter, 504 F.3d at 1036).

20 “Second, if the claimant has produced that evidence, and the ALJ has not determined that the

21 claimant is malingering, the ALJ must provide specific, clear and convincing reasons for

22 rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms” and

23 those reasons must be supported by substantial evidence in the record. Id.; see also Marsh v.

24 Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015); Carmickle v. Comm’r of Soc. Sec., 533 F.3d

25 1155, 1161 (9th Cir. 2008). The ALJ must specifically identify “what testimony is not credible

26 and what evidence undermines the claimant’s complaints.” Parra v. Astrue, 481 F.3d 742,

27 750 (9th Cir. 2007). (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also

28 Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding legal error where the ALJ

1 “failed to identify the testimony she found not credible”); Smolen v. Chater, 80 F.3d 1273,

2 1284 (9th Cir. 1996) (“The ALJ must state specifically which symptom testimony is not

3 credible and what facts in the record lead to that conclusion.”).

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5 In March 2016, the Commissioner promulgated Social Security Ruling (“SSR”) 16-3p,

6 2017 WL 5180304, which “makes clear what [Ninth Circuit] precedent already required: that

7 assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and

8 persistence of symptoms’ . . . and not to delve into wide ranging scrutiny of the claimant’s

9 character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir.

10 2017). Under SSR 16-3p, the ALJ shall determine whether to credit a claimant’s statements

11 about his pain and limitations by referring to the factors set forth in 20 C.F.R. §§

12 404.1529(c)(3) and 416.929(c)(3), which include: the claimant’s daily activities; the factors

13 that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects

14 of any medication taken to alleviate the symptoms; the claimant’s treatment, other than

15 medication, for the symptoms; any other measure that the individual uses to relieve pain or

16 other symptoms; and, finally, “any other factors concerning an individual’s functional

17 limitations and restrictions.” SSR 16-3p. However, the lack of objective medical evidence

18 supporting a claimant’s allegations cannot provide the sole basis for rejecting her statements

19 about the severity of her symptoms and limitations. Id.; see also Trevizo, 871 F.3d at 679; 20

20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (“we will not reject your statements about the

21 intensity and persistence of your pain or other symptoms or about the effect your symptoms

22 have on your ability to work solely because the available objective medical evidence does not

23 substantiate your statements”).

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25 E. Analysis

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27 Because the purported inconsistency between Plaintiff’s subjective complaints and

28 the objective evidence is not, by itself, a legally sufficient reason for declining to credit

1 Plaintiff’s subjective symptom allegations, the validity of the ALJ’s decision not to credit

2 Plaintiff’s statements in full depends on his second finding—that Plaintiff participated in

3 activities that were inconsistent with her allegedly debilitating symptoms. Specifically, the

4 ALJ found that Plaintiff’s ability to drive, do some household chores, go to the grocery store,

5 use the computer, and fix simple meals were inconsistent with her allegations. (AR 20.)

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7 An ALJ may rely on a plaintiff’s activities to discount the plaintiff’s statements about

8 her symptoms and limitations only when those activities either: (1) “contradict” the plaintiff’s

9 testimony; or (2) “meet the threshold for transferable work skills”—that is, where the plaintiff

10 “is able to spend a substantial part of his or her day performing household chores or other

11 activities that are transferable to a work setting.” Orn, 495 F.3d at 639. The ALJ’s rationale

12 for discounting Plaintiff’s statements falls under the former category. According to the ALJ,

13 Plaintiff’s driving, performance of some household chores, grocery shopping, computer usage,

14 and simple meal preparation were inconsistent with her allegations of debilitating pain and

15 unpredictable but recurring nausea and vomiting.

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17 The courts have frequently stated that “[d]isability does not mean that a claimant must

18 vegetate in a dark room excluded from all forms of human and social activity.” Cooper v.

19 Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (internal quotation arks and citation omitted); see

20 also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“mere fact that a plaintiff has

21 carried on certain daily activities, such as grocery shopping, driving a car, or limited walking

22 for exercise, does not in any way detract from her credibility as to her overall disability.”).

23 More recently, in Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014), the Ninth Circuit quoted

24 with approval the Seventh Circuit’s admonition that:

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26 [t]he critical differences between activities of daily living and activities in a

27 full-time job are that a person has more flexibility in scheduling the former

28 than the latter, can get help from other persons . . ., and is not held to a

1 minimum standard of performance, as she would be by an employer. The

2 failure to recognize these differences is a recurrent and deplorable feature of

3 opinions by administrative law judges in social security disability cases.

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5 Garrison, 759 F.3d at 1016 (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.

6 2012)).

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8 The ALJ’s characterization of Plaintiff’s extraordinarily limited activities as

9 inconsistent with her allegations of constant pain and nausea with frequent but unexpected

10 vomiting is not supported by substantial evidence in the record. Plaintiff, who is responsible

11 for caring for her teenage grandson, testified that she goes grocery shopping once or twice a

12 week but typically relies on her grandson to carry groceries from the cart to the car and/or

13 bring them in the house. (AR 41.) Plaintiff had previously reported that she shops by

14 computer once or twice a week and “often drives kids to store to shop for [her].” (AR 268.)

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16 Plaintiff reported that her illness is unpredictable and, although she does have good days,

17 most days are very bad and painful. (AR 271.) She wrote that she “sometimes” can do normal

18 things but then has to rest often. (AR 271.) To that end, Plaintiff testified that she tries to do

19 chores around the house and has set up stools around her home so that she can sit while she

20 does things, like making something to eat. (AR 41.) Plaintiff testified that she can do these

21 sorts of activities for 30 minutes before needing to lie down and rest. (AR 41.) Plaintiff had

22 previously reported she relies on others to prepare meals and do house chores (AR 266) but

23 can prepare a simple meal “once in a while,” so long as she does not need to stand for a long

24 period of time (AR 267). Plaintiff had also reported that she can “sometimes” wash dishes,

25 clean the kitchen, and do a little laundry. (AR 267.) Plaintiff reported that she is sometimes

26 unable to finish these tasks because of a sudden bout of nausea or vomiting. (AR 267.)

27 Plaintiff reported that even using the toilet was difficult because it was “painful to get on and

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1 off.” (AR 266.) Plaintiff similarly reported that she cannot get back up if she squats. (AR

2 269.)

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4 Plaintiff testified that her caregiving responsibilities for her grandson were quite limited

5 because he generally took care of himself and even helped her out, but she did have to make

6 sure that she got him to school. (AR 45.) On her prior Adult Function Report, Plaintiff had

7 stated that she took her then 14-year old grandson to school once a week and also helped him

8 with his homework. (AR 266.)

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10 Plaintiff testified that she napped, sometimes for hours, during the day and found it

11 painful to get out of bed in the morning. (AR 37.) Plaintiff testified that sitting was “painful”

12 but she felt lightheaded and dizzy when standing (AR 39), and, therefore, had to sit while

13 showering (AR 38). She testified that she was most comfortable when “laying down in bed.”

14 (AR 39.) Accordingly, Plaintiff reported that she spends most of her days in her bed, sleeping,

15 watching TV, or playing on an iPad. (AR 266.)

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17 When asked how long she could sit before she became uncomfortable, Plaintiff

18 answered that sitting for the 45-minute drive to the hearing was “too long” (AR 39) and she

19 had needed to pull over to stretch at one point during the trip (AR 47). The ALJ also observed

20 that Plaintiff was fidgeting “a lot” while sitting during the hearing. (AR 38.)

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22 Suffice to say, Plaintiff’s reports of her intermittent activities, seemingly none of which

23 she could perform for much more than 30 minutes without requiring rest, and all of which had

24 to be performed through pain while sitting, are not inconsistent with her allegations of

25 debilitating symptoms. Plaintiff reported that she was unable to complete even a 45-minute

26 drive without stopping to rest, generally relied on others to carry her groceries, needed to sit

27 down in the kitchen to prepare even simple meals, could not get on and off the toilet without

28 pain, and was only comfortable lying down—which is how she ultimately spends most of her

1 days. These reports are consistent, rather than at odds, with her allegations. The mere fact

2 that Plaintiff, as a grandmother who wishes to maintain a relationship with her grandchildren

3 and the primary caregiver for her teenage grandson, tries to perform normal activities around

4 her home does not indicate that she in fact retains a greater functional capacity than she

5 alleged. Cf.Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“disability claimants should

6 not be penalized for attempting to lead normal lives in the face of their limitations”).

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8 In sum, there is not substantial evidence in the record to support the ALJ’s conclusion

9 that Plaintiff performed activities that are inconsistent with her allegations about her symptoms

10 and limitations. Further, because the ALJ’s sole other rationale for discounting Plaintiff’s

11 excess pain testimony is its purported inconsistency with the medical evidence, his assessment

12 of Plaintiff’s statements about her symptoms and limitations as a whole must fall. See Trevizo,

13 871 F.3d at 679; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). Therefore, a remand is

14 warranted, and the sole question that remains is whether an award of benefits is warranted.

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16 II. Remand for the Immediate Award of Benefits is Warranted

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18 The decision whether to remand for further proceedings or order an immediate award of

19 benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78

20 (9th Cir. 2000). A district court may remand for an award of benefits when the following three

21 conditions are satisfied: “(1) the record has been fully developed and further administrative

22 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient

23 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the

24 improperly discredited evidence were credited as true, the ALJ would be required to find the

25 claimant disabled on remand.” Garrison, 759 F.3d at 1020. The third of these conditions

26 “incorporates . . . a distinct requirement of the credit-as-true rule, namely that there are no

27 outstanding issues that must be resolved before a determination of disability can be made.”

28 Id. at 1020, n.26. However, even if those three requirements are met, the Court retains

1 “flexibility” in determining the appropriate remedy and may remand for further proceedings

2 “when the record as a whole creates serious doubt as to whether the claimant is, in fact,

3 disabled within the meaning of the Social Security Act.” Burrell v. Colvin, 775 F.3d 1133,

4 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021).

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6 Plaintiff’s attorney asked the vocational expert at the hearing whether an individual who

7 is capable of working at any exertional level but requires a 30-minute break after

8 approximately 30 minutes of work activity could maintain gainful employment. (AR 52.) The

9 VE answered in the negative: “No, that person is not—is not employable.” (AR 52.) The VE

10 also opined in response to a question posed by the ALJ that a person who was otherwise

11 capable of performing her past relevant work but could only work for a total of four hours a

12 day “is not employable.” (AR 51.)

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14 Accordingly, the VE was given the opportunity to opine on whether an individual who

15 had the limitations reported by Plaintiff and improperly discredited by the ALJ would be able

16 to maintain gainful employment—and he opined that she could not. In light of the foregoing,

17 the Court finds that further administrative proceedings would serve no useful purpose and, if

18 the improperly discredited evidence were credited as true, the ALJ would indeed be required

19 to find Plaintiff disabled on remand. See Garrison, 759 F.3d at 1020. This case, then, is the

20 “rare exception” in which the credit as true rule should be applied and the matter remanded

21 for the calculation and award of benefits. See Leon v. Berryhill, 874 F.3d 1130, 1133 (9th Cir.

22 2017).

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24 CONCLUSION

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26 For the reasons stated above, IT IS ORDERED that the decision of the Commissioner

27 is REVERSED, and this case is REMANDED to the Commissioner an award of benefits

28 consistent with this memorandum of decision.

l IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this

2 || Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.

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4 LET JUDGMENT BE ENTERED ACCORDINGLY.

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6 || DATE: May 1, 2020

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TS win L: Rwensn

9 KAREN L. STEVENSON

10 UNITED STATES MAGISTRATE JUDGE

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