the ALJ must “specifically identify 23 the testimony [the ALJ] finds not to be credible and must explain what 24 evidence undermines the testimony”
How later courts described this case
- the ALJ must “specifically identify 23 the testimony [the ALJ] finds not to be credible and must explain what 24 evidence undermines the testimony”
- An ALJ’s decision will not be reversed for errors that are harmless
- “[T]he mere fact that a plaintiff has carried on certain daily 19 activities . . . does not in any way detract from her credibility as to 20 her overall disability. One does not need to be ‘utterly incapacitated’ 21 in order to be disabled.”
- “The ALJ 25 must state specifically which symptom testimony is not credible and what 26 facts in the record lead to that conclusion.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION
11
12
DIANA PITTS, ) Case No. EDCV 18-01617-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
20 For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to
21 Sentence Four of 42 U.S.C. § 405(g), this matter is remanded for further
22
administrative action consistent with this Opinion.
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 August 2, 2018, Plaintiff filed a Complaint seeking review of
4
the denial of her application for Disability Insurance Benefits and
5
Supplemental Security Income. (Docket Entry No. 1). The parties have
6
consented to proceed before the undersigned United States Magistrate
7
Judge. (Docket Entry Nos. 11-12). On December 13, 2018, Defendant
8
filed an Answer along with the Administrative Record (“AR”). (Docket
9
Entry Nos. 15-16). On June 13, 2019, the parties filed a Joint
10
11 Stipulation (“Joint Stip.”) setting forth their respective positions
12 regarding Plaintiff’s claims. (Docket Entry No. 25).
13
14 The Court has taken this matter under submission without oral
15 argument. See C.D. Cal. L.R. 7-15.
16
17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
18
19 On January 5, 2015, Plaintiff, formerly employed as a salesperson,
20 cashier, stock clerk, driver and dispatcher (see AR 41, 54-58, 288-91),
21 filed an application for Disability Insurance Benefits, alleging an
22 inability to work because of a disabling condition since August 10,
23
2010. (See AR 203-04). On January 9, 2015, Plaintiff filed an
24
application for Supplemental Security Income, alleging a disability
25
since August 10, 2010. (See AR 205-10). The Commissioner denied
26
Plaintiff’s applications, initially and on reconsideration. (AR 119-27,
27
131-40). On June 27, 2017, the Administrative Law Judge (“ALJ”),
28
Katherine Loo, heard testimony from Plaintiff (represented by counsel)
1
and an impartial vocational expert, Mary Jesko. (See AR 33-62).
2
3
On August 28, 2017, the ALJ issued a decision denying Plaintiff’s
4
applications. (See AR 15-23). Applying the five-step sequential
5
process, the ALJ found at step one that Plaintiff has not engaged in
6
substantial gainful activity since August 10, 2010, her alleged onset
7
date, through June 30, 2014, her date last insured. (AR 17). At step
8
two, the ALJ found that through the date last insured, Plaintiff had the
9
following severe impairments: “obesity, history of atelectasis,
10
11 degenerative changes of the spine, hepatomegaly with fatty infiltration
12 of the liver, folliculitis, early arthritis of the left knee, major
13 depressive disorder, and substance abuse” (AR 18). At step three, the
14 ALJ determined that Plaintiff did not have an impairment or combination
15 of impairments that met or equaled the severity of any of the listings
16 enumerated in the regulations.2 (AR 18).
17
18 The ALJ then assessed Plaintiff’s residual functional capacity
19 (“RFC”)3 and concluded that she had the capacity to perform medium work4
20
with the following limitations: can frequently reach, handle, finger and
21
feel; can occasionally climb ramps and stairs, stoop, kneel, crouch,
22
23
2 The ALJ considered whether Plaintiff met the criteria of
24 Listings 1.02, 1.04, 1.05, and 12.04, and concluded that she did not.
(AR 18).
25
3 A Residual Functional Capacity is what a claimant can still do
26 despite existing exertional and nonexertional limitations. See 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
27
4 “Medium work involves lifting no more than 50 pounds at a time
28 with frequent lifting or carrying of objects weighing up to 25 pounds.”
20 C.F.R. §§ 404.1567(c), 416.967(c).
1
crawl and interact with supervisors, coworkers and the public; can never
2
climb ladders or scaffolds or work around hazards such as unprotected
3
heights and moving machinery; can perform only simple, routine tasks;
4
and must avoid concentrated exposure to respiratory irritants. (AR 19-
5
22).
6
7
8 At step four, the ALJ found that Plaintiff was not able to perform
9 any past relevant work (AR 22). Based on Plaintiff’s RFC, age,
10 education, work experience and the VE’s testimony, the ALJ determined,
11 at step five, that through the date last insured, Plaintiff could
12 perform jobs existing in significant numbers in the national economy.
13 (AR 22-23). Accordingly, the ALJ found that Plaintiff was not under a
14 disability as defined in the Social Security Act, from August 10, 2010,
15 the alleged onset date, through the date of the decision. (AR 23).
16
17
The Appeals Council denied Plaintiff’s request for review on June
18
22, 2018. (See AR 1-5). Plaintiff now seeks judicial review of the
19
ALJ’s decision, which stands as the final decision of the Commissioner.
20
See 42 U.S.C. §§ 405(g), 1383(c).
21
22
STANDARD OF REVIEW
23
24
This Court reviews the Commissioner’s decision to determine if it
25
is free of legal error and supported by substantial evidence. See
26
Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial
27
evidence” is more than a mere scintilla, but less than a preponderance.
28
1
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine
2
whether substantial evidence supports a finding, “a court must consider
3
the record as a whole, weighing both evidence that supports and evidence
4
that detracts from the [Commissioner’s] conclusion.” Aukland v.
5
Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation
6
omitted). As a result, “[i]f the evidence can support either affirming
7
or reversing the ALJ’s conclusion, [a court] may not substitute [its]
8
judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d
9
880, 882 (9th Cir. 2006).5
10
11
PLAINTIFF’S CONTENTIONS
12
13
Plaintiff alleges that the ALJ erred in failing to properly: (1)
14
properly develop the medical record, and properly consider the medical
15
evidence of record in assessing Plaintiff’s RFC; and (2) consider
16
Plaintiff’s testimony in assessing Plaintiff’s RFC. (See Joint Stip.
17
at 3-9, 11-17).
18
19
DISCUSSION
20
21
After consideration of the record as a whole, the Court finds that
22
Plaintiff’s second claim of error warrants a remand for further
23
consideration. Since the Court is remanding the matter based on
24
Plaintiff’s second claim of error, the Court will not address
25
26
5 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
Plaintiff’s first claim of error.
2
3
4 A. The ALJ Did Not Properly Assess Plaintiff’s Testimony
5
6 Plaintiff asserts that the ALJ did not provide clear and convincing
7 reasons for rejecting Plaintiff’s testimony about her symptoms and
8 limitations. (See Joint Stip. at 11-17). Defendant asserts that the ALJ
9 properly discounted Plaintiff’s testimony, and alternatively contends
10 that any error in discounting Plaintiff’s testimony was harmless. (See
11 Joint Stip. at 17-19).
12
13 1. Legal Standard
14
15 Where, as here, the ALJ finds that a claimant suffers from a
16 medically determinable physical or mental impairment that could
17 reasonably be expected to produce her alleged symptoms, the ALJ must
18 evaluate “the intensity and persistence of those symptoms to determine
19 the extent to which the symptoms limit an individual’s ability to
20 perform work-related activities for an adult . . . .” Soc. Sec. Ruling
21 (“SSR”) 16-3p, 2017 WL 5180304, *3.6
22
23 A claimant initially must produce objective medical evidence
24 establishing a medical impairment reasonably likely to be the cause of
25
26
6 SSR 16-3p, which superseded SSR 96-7p, is applicable to this
27 case, because SSR 16-3p, which became effective on March 28, 2016, was
in effect at the time of the Appeal Council’s June 22, 2018 denial of
28 Plaintiff’s request for review. 20 C.F.R. § 404.1529, the regulation on
evaluating a claimant’s symptoms, including pain, has not changed.
1
the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
2
1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a
3
claimant produces objective medical evidence of an underlying impairment
4
that could reasonably be expected to produce the pain or other symptoms
5
alleged, and there is no evidence of malingering, the ALJ may reject the
6
claimant’s testimony regarding the severity of his or her pain and
7
symptoms only by articulating specific, clear and convincing reasons for
8
doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir.
9
2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
10
2007)); see also Smolen, supra; Robbins v. Social Sec. Admin, 466 F.3d
11
880, 883 (9th Cir. 2006); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
12
1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
13
Because the ALJ does not find that Plaintiff was malingering, the “clear
14
and convincing” standard stated above applies.
15
16
Generalized, conclusory findings do not suffice. See Moisa v.
17
Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)(the ALJ’s credibility
18
findings “must be sufficiently specific to allow a reviewing court to
19
conclude the [ALJ] rejected [the] claimant’s testimony on permissible
20
grounds and did not arbitrarily discredit the claimant’s testimony”)
21
(citation and internal quotation marks omitted); Holohan v. Massanari,
22
246 F.3d 1195, 1208 (9th Cir. 2001)(the ALJ must “specifically identify
23
the testimony [the ALJ] finds not to be credible and must explain what
24
evidence undermines the testimony”); Smolen, 80 F.3d at 1284 (“The ALJ
25
must state specifically which symptom testimony is not credible and what
26
facts in the record lead to that conclusion.”).
27
28
1
2. The ALJ’s Credibility Findings
2
3
Plaintiff made the following statements in a Function Report -
4
Adult dated December 20, 2015 (see AR 301-09):
5
6
She lives in a rental house behind her friend’s house.
7 Her mental problems (depression, anxiety, etc.), respiratory
problems, and blood clot in her leg limit her ability to
8 work. Her friend filled out her Function Report because
filling out the forms causes her to be stressed and
9 overwhelmed. (See AR 301, 308).
10 With respect to her daily activities, she wakes up at 9
a.m. on good days (10 or 11 a.m. on bad days), eats cereal,
11 watches television, cleans up, eats lunch, watches
television, and then takes a nap. She does not take care of
12 other people, but she feeds a dog. As a result of her
conditions, she is no longer able to work, visit with
13 friends, and celebrate holidays. Her conditions affect her
sleep. She does not have any problem with personal care, and
14 she does not need any reminders to take care of her personal
needs and grooming and to take medicine. She daily prepares
15 her own meals (cereal, microwave frozen meals), which takes
a few minutes. Before her conditions began, she used to cook
16 huge meals (she no longer enjoys preparing meals). On
separate days she does laundry (2 times a week, takes 1/2
17 hour to fold), washes dishes (once a week, takes 1/2 hour),
and vaccuums (every other day, takes 1/2 hour). She needs
18 help or encouragement with her housework when she is
depressed. She goes out on good days (for 1/2 hour),
19 walking, driving a car, or riding in a car, but she does not
go out on bad days. She drives, and can go out alone. She
20 goes grocery shopping once every 2 weeks (takes 45 minutes).
She is able to pay bills, count change, handle a savings
21 account, and use a checkbook/money orders. Her interests are
watching television (15 to 16 hours a day; prior to her
22 conditions she watched 2 to 3 hours a day) and taking care of
the dog. She does not spend time with others and does not go
23 to any places on a regular basis. Her children do not visit
her because she is depressed (which her children do not
24 understand). Before her conditions began, she regularly went
to parties with friends and had parties at home. (See AR
25 302-06).
26 Her conditions affect her abilities to squat, bend,
walk, kneel, stair-climb, concentrate, understand (on bad
27 days) and get along with others (she does not like to be
around others). She can walk for 1 block before needing to
28 rest, and can resume walking after resting for 5 minutes.
8
1 She cannot pay attention on bad days; she can pay attention
2 for about one hour on good days. When she is following hard
written instructions, she wants to quit. Sometimes (when
3 stressed) she gets confused following spoken instructions.
She gets along okay with authority figures. She has never
been fired or laid off from a job because of problems getting
4
along with other people. She is not able to handle stress
well (she does not want to be with people), but she is able
5
to handle changes in routine okay. Her unusual behavior or
fear is fear of dying. She uses prescription glasses (last
6
prescribed in 2014). She takes Trazodone, which causes her
to suffer dry mouth and gain weight. (See AR 306-07).
7
8
Plaintiff gave the following testimony at the administrative hearing
9
(see AR 37-58):
10
11
She is 53 years old. She went to school until the 9th
grade, and obtained her GED in 1989. Since March 2013 she
12
has lived in her friend’s deceased mother’s house which is
behind her friend’s house. She helped take care of her
13
friend’s wife (keeping her company, making meals, feeding,
administering medication, calling hospice) from October 2012
14
through May 2013 (when her friend’s wife died); she started
living at her friend’s deceased mother’s house in March 2013.
15
She helped take care of her friend’s mother (doing the same
tasks) until December 2014 (when her friend’s mother died).
16 She helped take care of the two women in exchange for room
and board starting in March 2013. She cleaned her friend’s
17 house (two times a month) in exchange for room and board
until October 2016, at which time she was no longer able to
18 do the cleaning. She currently gets food stamps and
“medical.” Her friend drove her to the hearing. (See AR 37-
19 41).
20 She worked at Walmart for five years, as a cashier (for
two years), then in the ladies wear department, the infant
21 department, as an overnight stocker, and in the cosmetics
department. She went on medical leave because of a swollen
22 left ankle; a cardiologist did an ultrasound and found a
blood clot, and put her on blood thinners and a special diet.
23 She returned to work after a vascular surgeon said the blood
clot was gone. She worked until August 2010. She knew she
24 was going to be let go after she failed to show up for work
for three days because of an incident (about which she felt
25 bad) in which she asked a cashier about the cashier’s baby
(who had died). She applied for other jobs and did not get
26 hired, which caused her to get more and more depressed and to
start isolating herself. (See AR 41-43, 54-56).
27
28
9
1
From 1997 to 2004, she worked as a driver and later as
2 a dispatcher for a railroad. (See AR 56-58).
3 She is not able to work because of her knees
(osteoarthritis), her weight, depression, anxiety, high
4 cholesterol, Type 2 diabetes, and mitrovalve regurgitation.
In May 2016, she saw an orthopedic surgeon and then waited
5 for seven months to get surgery on her left knee (which did
not happen on December 15, 2016 because she was sick). In
6 May 2017, she began to see another orthopedist, who does not
want to do surgery. She has received one injection in her
7 left knee (June 2017), and she is going to receive an
injection in her right knee (July 2017). The injection in
8 her left knee helped for one day; her knees are still bubbled
and she still has sharp pains. She has been prescribed, and
9 is, taking a new pain medication. (See AR 43-49).
10 For almost five years she has seen a clinical therapist
and a psychologist for depression and anxiety, and she takes
11 extra classes (such as a class on mindfulness). She sees her
psychologist for therapy every 4 to 6 weeks, sees a clinical
12 therapist every other week, and sees another mental health
professional every 14 weeks. She takes her psychiatric
13 medications faithfully; the one time she stopped taking her
medications for three days she did not want to do anything.
14 Therapy and medication keep her stable. However, most of the
time, she is depressed. (See AR 47-48, 50).
15
She has a history of acute bronchitis, but she does not
16 have asthma. She has to use an inhaler twice a day. This
past year, she went to the emergency room once due to
17 shortness of breath, and in the past she has had to go to the
emergency room a lot due to shortness of breath. She does
18 not take insulin for her diabetes; she only has had to change
her diet. She has not yet seen a cardiologist for the
19 mitroal valve regurgitation. (See AR 49-50).
20
With respect to her daily activities, she can shower and
21 take care of herself. She eats microwavable food. She
mostly stays in her pajamas because of her depression. She
22 can walk one block without a cane; with a cane she can walk
one more block after resting for 2 to 3 minutes. With or
23 without a cane, she is able to walk while carrying a little
purse weighing about 5 pounds. After walking that second
24 block, she goes home, goes into her room, turns on the
television, and gets into bed. She can stand for about 15
25 minutes without a cane, and then has to lie down. She has
difficulty sitting because of her knees. She cannot bend.
26 (See AR 49-53).
27 She does not smoke, she drinks one beer a week, and she
does not use illegal drugs. She took methamphetamine for
28 about four years, and has been clean for more than one year
(with only one relapse). (See AR 50-51).
1 After summarizing Plaintiff’s testimony (see AR 19-20)7 and
2
Plaintiff’s friend’s testimony (see AR 20), the ALJ wrote: “After
3
careful consideration of the evidence, the undersigned finds that the
4
claimant’s medically determinable impairments could reasonably be
5
expected to cause the alleged symptoms; however, the claimant’s
6
statements concerning the intensity, persistence and limiting effects
7
of these symptoms are not entirely consistent with the medical evidence
8
and other evidence in the record for the reasons explained in this
9
decision.” (AR 20). Following a discussion about the evidence of
10
Plaintiff’s psychiatric impairments, including the opinion of the State
11
Agency psychiatric consultant (see AR 20), the ALJ wrote: “However, the
12
evidence does not support more than moderate limitations in mental
13
functioning. The claimant repeatedly reported doing better on
14
15
7 The ALJ wrote:
16
The claimant was born on February 18, 1964, has a GED
17
(according to her testimony and Ex. 5F54), stands 5 feet and
4 inches tall, and weighs 253 pounds (Ex. 3E2). [¶] In or
18
about January 2015, the claimant identified manic depression,
a lung condition, and a heart problem as the conditions that
19
caused her to stop working on the alleged onset date (Ex.
3E2). [¶] On December 20, 2015, the claimant reported
20
depression, anxiety, a blood clot in her leg, and respiratory
problems for which she used an inhaler (Ex. 11E1) and no
21
problems with personal care (Ex. 11E2). She prepared her own
meals, did light housework including laundry and vacuuming
22
(Ex. 11E4), walked and drove for transportation, could go out
alone, shopped in stores for groceries once every 2 weeks for
23
45 minutes, could handle money (Ex. 11E5), watched television
all day, cared for her dog, did not spend time with others,
24
did not go anywhere on a regular basis (Ex. 11E6), had
problems with squatting, bending, walking, kneel[ing],
25
climbing stairs, concentration, understanding, following
instructions, and getting along with others (Ex. 11E7), and
26
did not want to be around people (Ex. 11E8). She allegedly
needed a friend to fill out the report because she felt
27
stressed and overwhelmed (Ex. 11E9). [¶] . . . [¶] The
claimant’s breathing problems and foot swelling allegedly
28
worsened in July 2015 pursuant to which she could not walk
long distances (Ex. 8E2).
1 medication and was able to manage her own daily living.” Following a
2
discussion about the evidence of Plaintiff’s physical impairments,
3
including the opinion of the State Agency medical consultant (see AR 21-
4
22), the ALJ wrote that “a limitation to a wide range of medium work is
5
warranted as a prophylactic measure.” (AR 22)
6
7
3. The ALJ’s Assessment of Plaintiff’s Testimony
8
9
As set forth below, the ALJ failed to provide legally sufficient
10
reasons for discrediting Plaintiff’s testimony about the intensity,
11
persistence and limiting effects of her pain and symptoms.8
12
13
First, the ALJ failed to “specifically identify ‘what testimony is
14
not credible and what evidence undermines [Plaintiff’s] complaints.’”
15
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)(quoting Lester v.
16
Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, 80 F.3d at
17
1284 (“The ALJ must state specifically what symptom testimony is not
18
credible and what facts in the record lead to that conclusion”).
19
20
Second, contrary to Defendant’s assertion (see Joint Stip. at 19),
21
the ALJ did not discount Plaintiff’s testimony about her symptoms and
22
limitations based on her ability to perform certain daily activities.
23
24
8 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 18-19). See Connett v. Barnhart,
340 F.3d 871, 874 (9th Cir. 2003)(“We are constrained to review the
26
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 Cir.
27
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 After stating that “[plaintiff’s] medically determinable impairments
2
could reasonably be expected to cause the alleged symptoms; however, the
3
claimant’s statements concerning the intensity, persistence and limiting
4
effects of these symptoms are not entirely consistent with the medical
5
evidence and other evidence in the record for the reasons explained in
6
this decision” (AR 20), the ALJ only discussed Plaintiff’s psychiatric
7
impairments (AR 20-21) and physical impairments (AR 21-22). The only
8
reference to Plaintiff’s daily activities was in the ALJ’s summary of
9
Plaintiff’s statements. See AR 19.
10
11
However, even if the ALJ had discounted Plaintiff’s testimony about
12
her symptoms and limitations related to her psychiatric impairments
13
based on her ability to perform certain daily activities, such as
14
preparing meals, doing laundry, vacuuming, walking, driving, going out
15
alone, grocery shopping, handling money, watching television, and caring
16
for her dog (see AR 19), this would not be a clear and convincing
17
reason. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.
18
2001)(“[T]he mere fact that a plaintiff has carried on certain daily
19
activities . . . does not in any way detract from her credibility as to
20
her overall disability. One does not need to be ‘utterly incapacitated’
21
in order to be disabled.”); Reddick, supra (“Only if the level of
22
activity were inconsistent with the Claimant’s claimed limitations would
23
these activities have any bearing on Claimant’s credibility.”). While
24
a plaintiff’s ability to spend a “substantial part” of his or her day
25
engaged in pursuits involving the performance of physical functions that
26
are transferable to a work setting may be sufficient to discredit him
27
or her, here, there is no evidence that Plaintiff was spending a
28 substantial part of her day engaged in these activities or that the
1
physical demands of such tasks as preparing meals, doing laundry,
2
vacuuming, walking, driving, going out alone, grocery shopping, handling
3
money, watching television, and caring for her dog were transferable to
4
a work setting. See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir.
5
2014)(“However, there is no indication here that the limited activities
6
Ghanim engaged in, often with the help of a friend, either comprised a
7
‘substantial portion’ of Ghanim’s day, or were ‘transferrable’ to a work
8
environment.”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600
9
(9th Cir. 1999). Indeed, at the hearing, the ALJ did not ask Plaintiff
10
about these activities.
11
12
It is not clear whether the ALJ considered Plaintiff’s testimony
13
about her limited abilities to perform such daily activities (see AR 303
14
[Plaintiff stated in the Function Report that she prepares microwaveable
15
frozen food which takes her “a few minutes”], AR 50 [Plaintiff stated
16
at the hearing that she only eats microwaveable food], AR 303 [Plaintiff
17
stated in the Function Report that she does laundry two times a week
18
which takes her 1/2 hour]; AR 303 [Plaintiff stated in the Function
19
Report that she vacuums one time a week which takes her 1/2 hour], AR
20
304 [Plaintiff stated in the Function Report that she goes out, walking,
21
driving a car, or riding in a car, for 1/2 hour only on “good days”],
22
AR 37 [Plaintiff stated at the hearing that her friend drove her to the
23
hearing], AR 304 [Plaintiff stated in the Function Report that every two
24
weeks she goes grocery shopping which takes about 45 minutes], and AR
25
302 [Plaintiff stated in the Function Report that she feeds a dog]).
26
Therefore, the degree to which Plaintiff could perform such daily
27
activities may not have been inconsistent with her testimony regarding
28
her symptoms and limitations. See Reddick, supra; see also Morgan v.
1
Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir.
2
1999)(“If a claimant is able to spend a substantial part of his day
3
engaged in pursuits involving the performance of physical functions that
4
are transferable to a work setting, a specific finding as to this fact
5
may be sufficient to discredit a claimant’s allegations.”).
6
7
Third, to the extent that the ALJ may have found there was a lack
8
of objective medical evidence supporting Plaintiff’s testimony
9
concerning her symptoms and limitations, this factor cannot, by itself,
10
support an adverse finding about Plaintiff’s testimony. See Trevizo v.
11
Berryhill, 862 F.3d 987, 1001 (9th Cir. 2017)(once a claimant
12
demonstrates medical evidence of an underlying impairment, “an ALJ ‘may
13
not disregard [a claimant’s testimony] solely because it is not
14
substantiated affirmatively by objective medical evidence.’”; quoting
15
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)); Rollins
16
v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v. Apfel, 161
17
F.3d 599, 602 (9th Cir. 1998); Blaine v. Berryhill, 2018 WL 6243089, *4
18
(D. Mont. Nov. 29, 2018)(“The ALJ’s conclusion that [the claimant’s]
19
testimony would only be accepted to the extent that her hearing
20
testimony was ‘consistent with the objective medical ... evidence’ is
21
the same as rejecting subjective symptom testimony to the extent that
22
it is inconsistent with the objective medical evidence. Here, the ALJ
23
treated consistency with the objective medical evidence as a necessary
24
condition to credibility, i.e., if a certain symptom is consistent with
25
the ‘other evidence’ but inconsistent with the ‘objective medical
26
evidence’ it is, according to the ALJ, not credible. By treating
27
cconsistency with the objective medical evidence in this way, the ALJ
28
essentially determined that it can be the sole ground for determining
1
that [the claimant’s] symptom testimony is not credible, which is the
2
precise practice the Ninth Circuit prohibits.”); see also SSR 16-3p,
3
2017 WL 5180304, *7 (“We must consider whether an individual’s
4
statements about the intensity, persistence, and limiting effects of his
5
or her symptoms are consistent with the medical signs and laboratory
6
findings of record.... However, we will not disregard an individual’s
7
statements about the intensity, persistence, and limiting effects of
8
symptoms solely because the objective medical evidence does not
9
substantiate the degree of impairment related-symptoms alleged by the
10
individual.”).
11
12
Because the Court finds that the the ALJ did not discount
13
Plaintiff’s symptom testimony on legally permissible grounds, the Court
14
is unable to defer to the ALJ’s credibility determination. Cf. Flaten
15
v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir.
16
1995)(the court will defer to the ALJ’s credibility determinations when
17
they are appropriately supported in the record by specific findings
18
justifying that decision)(citations omitted).
19
20
Defendant asserts that any error by the ALJ in discounting
21
Plaintiff’s testimony was harmless (see Joint Stip. at 19). The Court
22
disagrees. Since the ALJ did not provide reasons for discounting
23
Plaintiff’s testimony about her symptoms and limitations, the ALJ’s
24
error cannot be deemed “inconsequential to the ultimate nondisability
25
determination.” See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050,
26
1055 (9th Cir. 2006); Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d
27
1155, 1162 (9th Cir. 2008).
28
1
B. Remand Is Warranted
2
3
The decision whether to remand for further proceedings or order an
4
immediate award of benefits is within the district court’s discretion.
5
Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
6
useful purpose would be served by further administrative proceedings,
7
or where the record has been fully developed, it is appropriate to
8
exercise this discretion to direct an immediate award of benefits. Id.
9
at 1179 (“[T]he decision of whether to remand for further proceedings
10
turns upon the likely utility of such proceedings.”). However, where,
11
as here, the circumstances of the case suggest that further
12
administrative review could remedy the Commissioner’s errors, remand is
13
appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);
14
Harman v. Apfel, 211 F.3d at 1179-81.
15
16
Since the ALJ failed to properly assess Plaintiff’s symptom
17
testimony, remand is appropriate. Because outstanding issues must be
18
resolved before a determination of disability can be made, and “when the
19
record as a whole creates serious doubt as to whether the [Plaintiff]
20
is, in fact, disabled within the meaning of the Social Security Act,”
21
further administrative proceedings would serve a useful purpose and
22
remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir.
23
2014)(citations omitted).9
24
9 The Court has not reached any other issue raised by Plaintiff
25 except to determine that reversal with a directive for the immediate
payment of benefits would not be appropriate at this time.
26 “[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
27 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claim regarding the ALJ’s failures to properly develop the medical
28 record and to properly consider the medical evidence of record in
(continued...)
1
ORDER
2
3
For the foregoing reasons, the decision of the Commissioner is
4
reversed, and the matter is remanded for further proceedings pursuant
5
to Sentence 4 of 42 U.S.C. § 405(g).
6
7
LET JUDGMENT BE ENTERED ACCORDINGLY.
8
9
DATED: August 16, 2019
10
11
12 /s/
ALKA SAGAR
13 UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27 9 (...continued)
assessing Plaintiff’s RFC (see Joint Stip. at 3-9). Because this matter
28
is being remanded for further consideration, these issues should also be
considered on remand.