Robert Joseph Bierend v. Andrew Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ROBERT B.,1 Case No. 5:19-cv-2148-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner

of Social Security,2

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Defendant.

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18 I. PROCEDURAL HISTORY

19 Plaintiff Robert B. (“Plaintiff”) filed a complaint seeking review of the

20 decision of the Commissioner of Social Security denying his applications for

21 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

22 The parties filed consents to proceed before the undersigned United States

23 Magistrate Judge [Dkts. 11 and 12] and briefs addressing disputed issues in the case

24 [Dkt. 18 (“Pl. Br.”), Dkt. 19 (“Def. Br.”)]. The matter is now ready for decision.

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26 1 In the interest of privacy, this Order uses only the first name and the initial of

the last name of the non-governmental party.

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2 Andrew M. Saul, now Commissioner of the Social Security Administration, is

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substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).

1 For the reasons discussed below, the Court finds that this matter should be remanded

2 for further proceedings.

3 II. ADMINISTRATIVE DECISION UNDER REVIEW

4 On May 3, 2016, Plaintiff filed his applications for SSI and DIB alleging

5 disability based on a variety of issues including knee pain, sleep apnea, hearing loss,

6 and anxiety. [Dkt. 15, Administrative Record (“AR”).] After Plaintiff’s original

7 application was denied, Plaintiff appeared and testified at a video hearing before

8 Administrative Law Judge Robert Freedman. [AR 32-54.]

9 Applying the five-step sequential evaluation process, the ALJ found that

10 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). [AR 15-25.] At

11 step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

12 since June 15, 2014, the alleged onset date. [AR 17.] At step two, the ALJ found

13 that Plaintiff suffered from severe impairments including: “osteoarthritis of the

14 bilateral knees, meniscus tear of the right knee, and status post-arthroscopic surgery

15 right knee, status post ORIF surgery of the left femur (1993), status post fracture of

16 coccyx (remote in time), hearing loss, obesity, depression, and anxiety. [AR 17.]

17 The ALJ determined at step three that Plaintiff did not have an impairment or

18 combination of impairments that meets or medically equals the severity of one of

19 the listed impairments. [AR 18.]

20 At step four, the ALJ found that Plaintiff had the residual functional capacity

21 (“RFC”) to perform a limited range of sedentary work. [AR 20.] Applying this

22 RFC, the ALJ found that Plaintiff was unable to perform his past relevant work as a

23 pizza deliverer but determined that based on his age (43 years old) and high school

24 education, he could perform representative occupations such as addresser, charge

25 account clerk, or document preparer and, thus, is not disabled. [AR 24.]

26 III. GOVERNING STANDARD

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

28 determine if: (1) the Commissioner’s findings are supported by substantial evidence;

1 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r

2 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec.

3 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).

4 “Substantial evidence is more than a mere scintilla but less than a preponderance; it

5 is such relevant evidence as a reasonable mind might accept as adequate to support a

6 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.

7 2014) (internal citations omitted).

8 The Court will uphold the Commissioner’s decision when the evidence is

9 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d

10 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated

11 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he

12 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not

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

14 the error is “inconsequential to the ultimate nondisability determination, or if despite

15 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.

16 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations

17 omitted).

IV. DISCUSSION

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19 In his sole claim of error, Plaintiff argues that the ALJ failed to provide

20 sufficient reasons for rejecting his subjective testimony. [Pl.’s Br. at 5-11.]

21 Specifically, Plaintiff argues that the ALJ offered only one reason for discounting

22 his testimony: that the objective medical evidence is inconsistent with his

23 allegations of the severity of his impairments, which Plaintiff argues cannot be the

24 sole reason for rejecting his complaints. [Pl. Br. at 8-10.] As set forth below, the

25 Court agrees with Plaintiff and remands for further proceedings.

26 A. Plaintiff’s Testimony

27 At the administrative hearing, Plaintiff testified about the nature and limiting

28 effects of his condition. According to Plaintiff, he recently had surgery on his right

1 leg for a torn meniscus and he had surgery on his left leg in 1993. [AR 40.] Plaintiff

2 suffers from sleep apnea and he uses a CPAP device at least three times a week.

3 [AR 40-41.] He also suffers from hearing loss, but he does not wear a hearing aid.

4 [AR 41.] In addition to his physical impairments, Plaintiff also experiences

5 depression and anxiety for which he receives counseling every other week. [AR

6 40.]

7 When asked about his daily activities, Plaintiff testified that he lives in a

8 single-story house in a senior community with his parents. [AR 44.] With respect

9 to household chores, Plaintiff testified that he makes his bed, does light vacuuming

10 and goes grocery shopping with his mother. [AR 44.] He uses a computer to stay in

11 contact with family and put reminders on the calendar. [AR 45.] Plaintiff recently

12 had bariatric surgery which helped him lose 100 pounds. [AR 38.] Following his

13 surgery, Plaintiff attends the gym about twice a week. [AR 38.] His gym routine

14 includes “regular exercise” including push-ups, sit-ups, and lifting free weights up

15 to 10 pounds. [AR 38-39.]

16 Finally, Plaintiff testified about his functional abilities. He stated that he can

17 stand and walk for about five to twenty minutes before needing to rest. [AR 46.].

18 He sometimes uses a cane depending on how much his knees hurt, which he

19 estimated was about once or twice a week. [AR 46-47.] He testified that he could

20 drive for about twenty minutes but would need to take a three to five-minute break

21 before resuming. [AR 47.]

22 B. Legal Standard

23 If a claimant produces objective medical evidence of an underlying

24 impairment that could reasonably be expected to produce the symptoms alleged and

25 there is no affirmative evidence of malingering, the ALJ must offer “clear and

26 convincing” reasons to reject the claimant’s testimony. Smolen v. Chater, 80 F.3d

27 1273, 1281-82 (9th Cir. 1996); see also Reddick v. Chater, 157 F.3d 715, 722 (9th

28 Cir. 1998) (“Unless there is affirmative evidence showing that the claimant is

1 malingering, the Commissioner’s reasons for rejecting the claimant’s testimony

2 must be clear and convincing.” (internal quotation omitted)). Moreover, “[t]he ALJ

3 must state specifically which symptom testimony is not credible and what facts in

4 the record lead to that conclusion.” Smolen, 80 F.3d at 1284; Holohan v.

5 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify

6 the testimony [the ALJ] finds not to be credible and must explain what evidence

7 undermines the testimony”); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir.

8 1991). In addition to the “ordinary techniques of credibility evaluation,” Bunnell,

9 947 F.2d at 346, the following factors may be considered in assessing credibility: (1)

10 the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s

11 testimony or between his testimony and conduct; (3) claimant’s daily living

12 activities; (4) claimant’s work record; and (5) testimony from physicians or third

13 parties concerning the nature, severity, and effect of claimant’s condition. Thomas

14 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

15 C. Analysis

16 Here, in addressing Plaintiff’s subjective complaints the ALJ found that “as

17 for the claimant’s statements about the intensity, persistence, and limiting effects of

18 his or her symptoms, they are inconsistent because the medical evidence of record

19 does not support the limitations to standing, walking, and sitting to which he

20 testified. The other limitations and activities to which he testified are consistent

21 with the medical evidence of record and accommodated by the above residual

22 functional capacity assessment.” [AR 22.]

23 Viewing the ALJ’s decision liberally, the ALJ impliedly provided two reasons

24 for finding Plaintiff less credible: (1) Plaintiff’s daily activities were inconsistent

25 with his alleged limitations and (2) there was a lack of objective medical evidence to

26 support his complaints. [Def.’s Br. at 6-10]; [AR 21-22.]

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1 1. Daily Activities

2 Generally, inconsistency between symptom allegations and daily activities

3 may act as a clear and convincing reason to discount subjective symptom testimony.

4 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at

5 346. But the mere fact that “a plaintiff has carried on certain daily activities, such as

6 grocery shopping, driving a car, or limited walking for exercise, does not in any way

7 detract from her credibility as to her overall disability.” Vertigan v. Halter, 260

8 F.3d 1044, 1050 (9th Cir. 2001). “The Social Security Act does not require that

9 claimants be utterly incapacitated to be eligible for benefits, and many home

10 activities are not easily transferable to what may be the more grueling environment

11 of the workplace, where it might be impossible to periodically rest or take

12 medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (internal citations

13 omitted); see also Molina, 674 F.3d at 1112-13 (“While a claimant need not

14 vegetate in a dark room . . . to be eligible for benefits, the ALJ may discredit a

15 claimant’s testimony when the claimant reports participation in everyday activities

16 indicating capacities that are transferable to a work setting.”) (internal citations and

17 quotations omitted). “The critical differences between activities of daily living and

18 activities in a full-time job are that a person has more flexibility in scheduling the

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

20 minimum standard of performance, as []he would be by an employer.” Bjornson v.

21 Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (cited with approval in Garrison v.

22 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)).

23 Additionally, an ALJ may discredit testimony when a claimant reports

24 participation in everyday activities indicating capacities that are transferable to a

25 work setting. Molina, 674 F.3d at 1113. However, “[e]ven where those activities

26 suggest some difficulty functioning, they may be grounds for discrediting the

27 claimant’s testimony to the extent that they contradict claims of a totally debilitating

28 impairment.” Id. (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th

1 Cir. 2010); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir.

2 2009)). “Engaging in daily activities that are incompatible with the severity of

3 symptoms alleged can support an adverse credibility determination.” Ghanim v.

4 Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)).

5 Preliminarily, the Court notes that the ALJ did not specifically discount

6 Plaintiff’s credibility based on Plaintiff’s daily activities. Instead the ALJ

7 summarized Plaintiff’s testimony regarding his daily activities and found that those

8 activities were consistent with the RFC assessment. [AR 22.] The implied

9 rationale, as suggested by Defendant, is that the ALJ found Plaintiff’s allegations of

10 total disability unreliable because his admitted activities were consistent with the

11 RFC. Despite Defendant’s post hoc explanation, without explicit elaboration from

12 the ALJ, this implication is too general to be considered adequately explained. See

13 Morinskey v. Astrue, 458 Fed. Appx. 640, 641 (9th Cir. 2011) (finding an

14 inadequate discussion of an opinion where “the ALJ’s rationale [was] implied”

15 regarding the claimant’s daily activities). Moreover, even if the Court were to try to

16 discern the ALJ’s path to this finding, see Brown-Hunter, 806 F.3d at 492, it would

17 not reveal a sufficient reason to reject Plaintiff’s credibility based on the activities of

18 daily living upon which the ALJ apparently relied for the reasons explained below.

19 In summarizing Plaintiff’s daily activities, the ALJ noted that Plaintiff can

20 make his bed, do chores such as light vacuuming, make meals, go grocery shopping

21 with his mother, drive, and use a computer. [AR 22.] But this record does not show

22 that Plaintiff’s daily activities, as he described them, are inconsistent with his

23 testimony about his impairments and limitations. “[D]isability claimants should not

24 be penalized for attempting to lead normal lives in the face of their limitations.”

25 Reddick, 157 F.3d at 722 (holding that “[o]nly if the level of activity were

26 inconsistent with [a claimant’s] claimed limitations would these activities have any

27 bearing on [the claimant’s] credibility”) (citations omitted). Plaintiff’s activities

28 such as performing some household chores, shopping, driving, using computers and

1 exercising are not necessarily inconsistent with the symptoms and limitations

2 Plaintiff described in his testimony, such as being able to only sit for thirty minutes

3 and stand for a maximum of twenty minutes at a time before needing a break. [AR

4 21-22.]; see Garrison, 759 F.3d at 1016 (warning that ALJs must be cautious in

5 concluding that daily activities are inconsistent with a claimant’s testimony,

6 “because impairments that would unquestionably preclude work and all the

7 pressures of a workplace environment will often be consistent with doing more than

8 merely resting in bed all day”). Indeed, nothing in Plaintiff’s descriptions of his

9 activities would permit an inference that Plaintiff could sit for extended periods of

10 time over his testimony that he could only sit for up to 30 minutes before needing to

11 stand and move around. See Bryant J. v. Saul, No. CV 19-07063-PJW, 2020 WL

12 4819265, at *2 (C.D. Cal. Aug. 19, 2020) (“The fact that [claimant] is able to walk

13 his dog, swim once a week, and participate in Wounded Warrior and associated

14 events does not mean [claimant] is able to perform full-time work and [claimant]

15 should not be penalized for attempting to lead a normal life despite his PTSD

16 diagnosis.”) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).

17 Nevertheless, the Court is not persuaded that the ALJ discredited Plaintiff’s

18 credibility based on his daily activities. As in Brown-Hunter, the ALJ here “simply

19 stated [his] [subjective symptom testimony] conclusion and then summarized the

20 medical evidence supporting [his] RFC determination.” Brown-Hunter, 806 F.3d at

21 494. Although the ALJ also summarized Plaintiff’s daily activities, he did not

22 identify the testimony he found not credible, and “link that testimony to the

23 particular parts of the record” supporting his determination to discount Plaintiff’s

24 subjective symptom testimony. Id. In short,”[t]his is not the sort of explanation or

25 the kind of ‘specific reasons’ we must have in order to review the ALJ’s decision

26 meaningfully, so that we may ensure that the claimant’s testimony was not

27 arbitrarily discredited,” nor can the error be found harmless. Id. (rejecting the

28 Commissioner’s argument that because the ALJ set out his RFC and summarized the

1 evidence supporting his determination, the Court can infer that the ALJ rejected the

2 Plaintiff’s testimony to the extent it conflicted with that medical evidence, because

3 the ALJ “never identified which testimony [he] found not credible, and never

4 explained which evidence contradicted that testimony.”)

5 Accordingly, even assuming the ALJ impliedly determined that Plaintiff’s

6 reported daily activities were somehow incompatible with his subjective symptom

7 allegations, this was not a specific, clear and convincing reason supported by

8 substantial evidence for discounting Plaintiff’s subjective symptom testimony.

9 2. Inconsistency with the Objective Medical Evidence

10 The only other reason provided by the ALJ to discount Plaintiff’s credibility

11 was that the objective medical evidence was inconsistent with Plaintiff’s testimony

12 regarding his limitations. [AR 22-23.] It is well-established that an “ALJ may not

13 discredit a claimant’s subjective testimony on” the sole basis that “no objective

14 medical evidence” supports the claimant’s testimony as to “the severity of the

15 subjective symptoms from which he suffers.” Robbins v. Comm’r of Soc. Sec.

16 Admin., 466 F.3d 880, 883 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345

17 (9th Cir. 1991) (“an adjudicator may not reject a claimant’s subjective complaints

18 based solely on a lack of objective medical evidence to fully corroborate the alleged

19 severity of the [symptoms].”). Thus, a lack of corroborating objective evidence was

20 an insufficient reason, on its own, for the ALJ to find Plaintiff less than fully

21 credible. Accordingly, for the reasons stated above, the Court finds that the ALJ

22 failed to provide specific, clear and convincing reasons for discounting Plaintiff’s

23 subjective symptom testimony and remand is warranted.

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26 V. CONCLUSION

27 The decision of whether to remand for further proceedings or order an

28 immediate award of benefits is within the district court’s discretion. Harman v.

1 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be

2 served by further administrative proceedings, or where the record has been fully

3 developed, it is appropriate to exercise this discretion to direct an immediate award

4 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings

5 turns upon the likely utility of such proceedings”). But when there are outstanding

6 issues that must be resolved before a determination of disability can be made, and it

7 is not clear from the record the ALJ would be required to find the claimant disabled

8 if all the evidence were properly evaluated, remand is appropriate. Id. A remand

9 for an immediate award of benefits is appropriate “only in rare circumstances.”

10 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (internal citation

11 omitted).

12 The Court finds that remand is appropriate because the circumstances of this

13 case do not preclude the possibility that further administrative review could remedy

14 the ALJ’s errors. On remand, the Commissioner must re-evaluate Plaintiff’s

15 pain/subjective symptom assertions and testimony properly, which in turn may lead

16 to the formulation of a new RFC and the need for additional vocational expert

17 testimony. The Court therefore declines to exercise its discretion to remand for an

18 immediate award of benefits. See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon

19 reversal of an administrative determination, the proper course is remand for

20 additional agency investigation or explanation, “except in rare circumstances”);

21 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court

22 concludes that further administrative proceedings would serve no useful purpose, it

23 may not remand with a direction to provide benefits.”).

24 For all of the foregoing reasons, IT IS ORDERED that:

25 (1) the Decision of the Commissioner is REVERSED and this matter

26 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

27 administrative proceedings consistent with this Memorandum Opinion and

28 Order; and

1 (2) Judgment be entered in favor of Plaintiff.

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3 IT IS SO ORDERED.

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5 || DATED: August 27, 2020 LY =

6 UNITED STATES MAGISTRATE JUDGE

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