“The ALJ 27 must make specific findings relating to the daily activities and their transferability to 28 conclude that a claimant’s daily activities warrant an adverse credibility 1 determination.”
How later courts described this case
- “The ALJ 27 must make specific findings relating to the daily activities and their transferability to 28 conclude that a claimant’s daily activities warrant an adverse credibility 1 determination.”
- remanding 19 for an award of benefits is appropriate in rare circumstances
- holding inconsistencies between 14 symptom allegations and daily activities may act as a clear and convincing reason to 15 discount claimant’s credibility
- “If the evidence can support either affirming or reversing 7 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 WANDA L. S.-N., Case No. EDCV 20-0772-RAO
12 Plaintiff,
13 v. MEMORANDUM OPINION AND
ORDER
14 ANDREW M. SAUL, Commissioner of
Social Security,
15 Defendant.
16
17 I. INTRODUCTION
18 Plaintiff Wanda L. S.-N.1 (“Plaintiff”) challenges the Commissioner’s denial
19 of her application for disability insurance benefits (“DIB”) under Title II of the Social
20 Security Act. For the reasons stated below, the decision of the Commissioner is
21 REVERSED, and the matter is REMANDED.
22 II. PROCEEDINGS BELOW
23 On August 9, 2017, Plaintiff protectively filed a Title II application for DIB.
24 (Administrative Record (“AR”) 9, 158-61.) Her application was denied initially on
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26 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil
27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United
28 States.
1 October 25, 2017 (AR 61-74), and upon reconsideration on February 1, 2018 (AR
2 75-87). Plaintiff filed a request for hearing (AR 102), and a hearing was held on
3 October 30, 2019 (AR 27-60). Represented by counsel, Plaintiff appeared and
4 testified, along with an impartial vocational expert. (AR 27-60.) On December 3,
5 2019, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under
6 a disability, pursuant to the Social Security Act, from September 12, 2016, the alleged
7 onset date, through the date of the decision. (AR 9-23.) The ALJ’s decision became
8 the Commissioner’s final decision when the Appeals Council denied Plaintiff’s
9 request for review. (AR 1-5.) Plaintiff filed this action on April 14, 2020. (Dkt. No.
10 1.)
11 The ALJ followed a five-step sequential evaluation process to assess whether
12 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821,
13 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged
14 in substantial gainful activity since September 12, 2016, the alleged onset date. (AR
15 11.) At step two, the ALJ found that Plaintiff had the severe impairments of
16 degenerative disc disease with radiculitis, borderline cardiomegaly, asthma,
17 fibromyalgia, obesity, history of lupus, somatic disorder, neurocognitive disorder,
18 depression, and anxiety. (AR 11.) At step three, the ALJ found that Plaintiff “d[id]
19 not have an impairment or combination of impairments that meets or medically
20 equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
21 Appendix 1.” (AR 12.)
22 Before proceeding to step four, the ALJ found that Plaintiff had the residual
23 functional capacity (“RFC”) to:
24 [P]erform medium work . . . except . . . [Plaintiff] could lift and or carry
25 fifty pounds occasionally and twenty-five pounds frequently; she could
26 stand and or walk six hours in an eight-hour workday; and she could sit
27 six hours in an eight-hour workday. [Plaintiff] must avoid concentrated
28 exposure to wetness, humidity, dusts, gases, and other pulmonary
1 irritants. [Plaintiff] is limited to simple, routine tasks with no public
2 contact and only occasional contact with coworkers and supervisors in
3 a low stress job, defined as having only occasional decision-making
4 duties and changes in the work setting.
5 (AR 15.)
6 At step four, the ALJ found that Plaintiff was unable to perform past relevant
7 work as actually or generally performed. (AR 21.) At step five, based on Plaintiff’s
8 age, education, work experience, RFC, and the vocational expert’s testimony, the
9 ALJ found that there were jobs that existed in significant numbers in the national
10 economy that Plaintiff could perform. (AR 21-22.) Accordingly, the ALJ
11 determined that, as to Plaintiff’s claim for DIB, Plaintiff had not been under a
12 disability from September 12, 2016, through the date of the decision. (AR 22.)
13 III. STANDARD OF REVIEW
14 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s
15 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are
16 supported by substantial evidence, and if the proper legal standards were applied.
17 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence .
18 . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such
19 relevant evidence as a reasonable mind might accept as adequate to support a
20 conclusion.’” Biestek v. Berryhill, —U.S. —, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d
21 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
22 An ALJ can satisfy the substantial evidence requirement “by setting out a detailed
23 and thorough summary of the facts and conflicting clinical evidence, stating his
24 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725
25 (9th Cir. 1998) (citation omitted).
26 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a
27 specific quantum of supporting evidence. Rather, a court must consider the record
28 as a whole, weighing both evidence that supports and evidence that detracts from the
1 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)
2 (citations and internal quotations omitted). “‘Where evidence is susceptible to more
3 than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v.
4 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart,
5 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Social Sec. Admin., 466 F.3d
6 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing
7 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). The
8 Court may review only “the reasons provided by the ALJ in the disability
9 determination and may not affirm the ALJ on a ground upon which he did not rely.”
10 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340
11 F.3d 871, 874 (9th Cir. 2003)).
12 IV. DISCUSSION
13 Plaintiff raises two issues for review: (1) whether the ALJ properly considered
14 the medical evidence in assessing Plaintiff’s RFC; and (2) whether the ALJ properly
15 considered Plaintiff’s subjective statements and testimony. (Joint Submission (“JS”)
16 4.) For the reasons below, the Court remands.
17 A. The ALJ Erred in Rejecting Plaintiff’s Subjective Symptom
18 Testimony
19 Plaintiff contends that the ALJ failed to properly consider her subjective
20 statements and testimony regarding her symptoms and limitations. (JS 25.)
21 Specifically, Plaintiff argues that in evaluating her subjective symptoms and
22 functional limitations, the ALJ mischaracterized Plaintiff’s activities of daily living.2
23 (JS 25.) Plaintiff argues that her activities of daily living “are minimal at best, and
24 at most consistent with an ability to perform sedentary and/or light activities of daily
25 living for brief periods of time.” (JS 25.) Plaintiff further argues that the ALJ’s
26 remaining reason for discounting her subjective testimony, the lack of supporting
27 objective evidence, cannot form the sole basis for discounting symptom testimony.
28 2 The Court addresses Plaintiff’s claims in a different order than she presented.
1 (JS 27.) The Commissioner contends that the ALJ gave sufficient reasons supported
2 by the record for her assessment of Plaintiff’s subjective allegations. (JS 30-33.)
3 Where, as here, the claimant has presented evidence of an underlying
4 impairment and the ALJ did not make a finding of malingering (see AR 16), the ALJ
5 must “evaluate the intensity and persistence of [the] individual’s symptoms . . . and
6 determine the extent to which [those] symptoms limit [his or her] . . . ability to
7 perform work-related activities.” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL
8 5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ
9 “examine[s] the entire case record, including the objective medical evidence; an
10 individual’s statements . . .; statements and other information provided by medical
11 sources and other persons; and any other relevant evidence in the individual’s case
12 record.” Id. at *4. The ALJ must provide “specific, clear and convincing reasons”
13 for rejecting the claimant’s statements. Lambert v. Saul, 980 F.3d 1266, 1277 (9th
14 Cir. 2020) (citations and internal quotation marks omitted); Trevizo v. Berryhill, 871
15 F.3d 664, 678 (9th Cir. 2017) (citation omitted). The ALJ must identify what
16 testimony was found not credible and explain what evidence undermines that
17 testimony. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General
18 findings are insufficient.” Lester, 81 F.3d at 834.
19 In a Function Report dated August 31, 2017, Plaintiff reported that she sleeps
20 during the day due to lack of energy and sometimes goes to the grocery store and
21 doctor’s appointments. (AR 196.) She does not shower every day, due to depression.
22 (AR 196.) She no longer cooks meals; she heats up frozen meals because she is “too
23 weak.” (AR 197.) She can load the dishwasher, vacuum, and do laundry, but in 15-
24 minute increments due to fibromyalgia pain in her joints and muscles. (AR 197-98.)
25 She no longer attends church in person because she lacks energy to get ready to go.
26 (AR 198.) She shops for groceries once a week or once every two weeks for 30-40
27 minutes. (AR 198.) Her hobbies have diminished to watching TV and doing light
28 cleaning. (AR 199.) When she can, she spends time with others on Facebook and
1 on the telephone. (AR 199.) She does not go out to socialize unless she feels well
2 enough to go to church. (AR 199-200.) She can walk 15-20 minutes before needing
3 to rest for 30 minutes. (AR 200.) She can sometimes follow written or spoken
4 instructions, depending on her fatigue and “fibromyalgia fog in the brain.” (AR 200.)
5 She does not handle stress well. (AR 201.) She can handle changes in routine as
6 long as she understands the change. (AR 201.) Some of her medications make her
7 tired and dizzy. (AR 202.) In a 2018 Disability Report – Appeal, Plaintiff added that
8 she has anxiety attacks when she leaves the house. (AR 213.)
9 At the hearing on October 30, 2019, Plaintiff testified that she is not able to
10 complete tasks, as she gets “very tired during the day and sometimes [she] sleep[s]
11 five to six hours,” and it is hard to remember things. (AR 31.) She stated that she is
12 in a lot of physical, musculoskeletal pain. (AR 31, 36.) She only goes out for doctor’s
13 appointments or to the grocery store once or twice a month. (AR 32.) She can drive,
14 but only to the grocery store, which is a short distance away. (AR 33-34.) She cannot
15 work because of the pain and her inability to stay awake all day long. (AR 38.) She
16 can sit for 30 minutes and then must get up due to the pain. (AR 45.) She lives alone,
17 but she has friends that come over to assist her. (AR 46.) She eats TV dinners, can
18 pay her bills, and get her mail. (AR 46.) She attends church online. (AR 47.) She
19 takes care of two indoor Chihuahuas. (AR 32.)
20 The ALJ rejected Plaintiff’s subjective testimony because (1) her daily
21 activities were inconsistent with her allegations of disabling symptoms and
22 limitations; and (2) the objective medical evidence did not reflect the degree of
23 limitations alleged by Plaintiff. (AR 16-18.)
24 Regarding Plaintiff’s daily activities, the ALJ noted that “[s]ome of the
25 physical and mental abilities and social interactions required in order to perform these
26 activities are the same as those necessary for obtaining and maintaining
27 employment,” and found that Plaintiff’s “ability to participate in such activities is
28 inconsistent with her allegations of functional limitations.” (AR 18.) The ALJ noted
1 that Plaintiff could attend to her personal hygiene, prepare simple meals, complete
2 light household chores, drive a vehicle, shop in stores, manage her finances, navigate
3 a computer, talk on the phone, and display sufficient concentration and attention to
4 follow television programs. (AR 18.)
5 Generally speaking, an ALJ may use inconsistencies between a claimant’s
6 testimony and his or her other statements, conduct, and daily activities as a basis for
7 discounting his or her testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148
8 (9th Cir. 2001); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); see also
9 Burkett v. Berryhill, 732 F. App’x 547, 552 (9th Cir. 2018) (“While transferability of
10 skills to a work setting is one way in which an ALJ may consider a claimant’s daily
11 activities, an ALJ may also discount claimant testimony where reported daily
12 activities contradict the claimant’s alleged extent of her limitations.”); Tommasetti v.
13 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (holding inconsistencies between
14 symptom allegations and daily activities may act as a clear and convincing reason to
15 discount claimant’s credibility). In this case, however, this was not a convincing
16 reason for discounting Plaintiff’s testimony.
17 The Court agrees with Plaintiff that the ALJ mischaracterized Plaintiff’s
18 activities of daily living. The ALJ appeared to ignore evidence that Plaintiff did not
19 shower daily, only prepared frozen meals, completed light household chores in 15
20 minute increments, drove for short distances and infrequently, shopped for groceries
21 once or twice a month for 30-40 minutes at a time, and attended church online. The
22 ALJ does not explain how Plaintiff’s ability to perform these minimal activities
23 around her daytime sleep schedule establishes that her activities are inconsistent with
24 her subjective testimony or that she could perform medium work eight hours a day,
25 five days a week. Further, the ALJ failed to address how Plaintiff’s limited daily
26 activities would transfer to a workplace setting. See Orn, 495 F.3d at 639 (“The ALJ
27 must make specific findings relating to the daily activities and their transferability to
28 conclude that a claimant’s daily activities warrant an adverse credibility
1 determination.”) (internal quotation marks omitted). Accordingly, the record does
2 not support the ALJ’s finding that Plaintiff’s activities were inconsistent with her
3 symptom testimony. See Rawa v. Colvin, 672 F. App’x 664, 666 (9th Cir. 2016)
4 (finding that where “the ALJ omitted a number of salient and dispositive facts and
5 details when recounting [claimant’s] activity level,” including the fact that claimant
6 drove only a couple of times per week and the fact that she experienced pain while
7 engaged in certain activities, “[s]uch an inaccurate representation of the record can
8 not constitute a specific, clear, and convincing reason for rejecting” claimant’s
9 subjective symptom testimony).
10 The Commissioner highlights two reasons for discounting Plaintiff’s
11 subjective testimony that were not relied upon by the ALJ. First, the Commissioner
12 argues that Plaintiff admitted to other activities, such as taking classes and
13 participating in “lots of [other] church activities.” (JS 32; AR 259, 265, 282, 306.)
14 Second, the Commissioner acknowledges that Plaintiff’s activities “did not
15 necessarily support Plaintiff’s ability to perform medium work and Plaintiff may
16 have had some difficulties,” but argues that Plaintiff’s activities failed to establish
17 that Plaintiff had significant functional limitations. (JS 32). The Court is constrained
18 to review the reasons asserted by the ALJ. See Connett, 340 F.3d at 874.
19 Finally, the ALJ discounted Plaintiff’s subjective testimony because “the
20 medical evidence, signs and findings upon objective examination simply do not
21 reflect the degree of limitations” alleged by Plaintiff. (AR 16.) This reason cannot
22 form the sole basis for discounting symptom testimony. See Burch, 400 F.3d at 681
23 (“Although lack of medical evidence cannot form the sole basis for discounting pain
24 testimony, it is a factor that the ALJ can consider in his credibility analysis.”); Light,
25 119 F.3d at 792 (“[A] finding that the claimant lacks credibility cannot be premised
26 wholly on a lack of medical support for the severity of [her] pain.”). As this is the
27 only remaining reason the ALJ provided for discounting Plaintiff’s subjective
28 testimony, this reason alone is not sufficient.
1 Because the ALJ failed to provide specific, clear, and convincing reasons for
2 discounting Plaintiff’s subjective testimony, remand is warranted on this issue.
3 B. The Court Declines to Address Plaintiff’s Remaining Issue
4 Having found that remand is warranted, the Court declines to address
5 Plaintiff’s remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
6 (“Because we remand the case to the ALJ for the reasons stated, we decline to reach
7 [plaintiff’s] alternative ground for remand.”); see also Augustine ex rel. Ramirez v.
8 Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not
9 address the other claims plaintiff raises, none of which would provide plaintiff with
10 any further relief than granted, and all of which can be addressed on remand.”).
11 C. Remand for Further Administrative Proceedings
12 Plaintiff contends that the ALJ’s decision should be vacated and the matter
13 remanded for further proceedings. (JS 33.) The Commissioner agrees that, should
14 the Court find reversible error, it should remand for further administrative
15 proceedings. (JS 33 at n.12.)
16 The Court agrees with the parties that remand for further administrative
17 proceedings is appropriate, as further administrative review could remedy the ALJ’s
18 errors. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding
19 for an award of benefits is appropriate in rare circumstances).3 The Court finds that
20 the ALJ failed to provide specific, clear and convincing reasons supported by
21 substantial evidence to discount Plaintiff’s subjective testimony. On remand, the
22 3 Before ordering remand for an award of benefits, three requirements must be met:
23 (1) the Court must conclude that the ALJ failed to provide legally sufficient reasons
for rejecting evidence; (2) the Court must conclude that the record has been fully
24 developed and further administrative proceedings would serve no useful purpose; and
25 (3) the Court must conclude that if the improperly discredited evidence were credited
as true, the ALJ would be required to find the claimant disabled on remand. Id.
26 (citations omitted). Even if all three requirements are met, the Court retains
27 flexibility to remand for further proceedings “when the record as a whole creates
serious doubt as to whether the claimant is, in fact, disabled within the meaning of
28 the Social Security Act.” Id. (citation omitted).
1 || ALJ shall reassess Plaintiff’s subjective testimony. The ALJ shall then reassess
2 || Plaintiff's RFC in light of the reassessment of Plaintiff's subjective allegations and
3 || proceed through step four and step five to determine what work, if any, Plaintiff is
4 || capable of performing. This order does not preclude the ALJ from considering, on
5 || remand, any other arguments raised by Plaintiff.
6 || V. CONCLUSION
7 IT IS ORDERED that Judgment shall be entered REVERSING the decision of
g || the Commissioner denying benefits and REMANDING the matter for further
9 || proceedings consistent with this Order.
10 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
11 || Order and the Judgment on counsel for both parties.
12 Rapells, A, □□
13 || DATED: February 11, 2021 OOO
14 ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE
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17 NOTICE
8 | FERS PRION ES NU OMMEN DER RO BREREAGATION IN WESTLAN,
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