Natalie Medina v. Carolyn W Colvin, No. 2:2012cv10052 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this Memorandum and Order. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 NATALIE MEDINA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ) NO. CV 12-10052 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Natalie Medina ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying her application 24 for Disability Insurance Benefits.1 The parties consented, pursuant to 25 26 1 The Court notes that Carolyn W. Colvin became the Acting 27 Commissioner of the Social Security Administration on February 14, 2013. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil 28 Procedure, the Court orders that the caption be amended to substitute Carolyn W. Colvin for Michael J. Astrue as the defendant in this action. 1 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 2 Magistrate Judge. 3 Agency is REVERSED and the action is REMANDED for further review 4 consistent with this decision. For the reasons stated below, the decision of the 5 6 II. 7 PROCEDURAL HISTORY 8 9 Plaintiff applied for Disability Insurance Benefits on January 20, 10 2010. (Administrative Record ( AR ) 115-17). 11 disability onset date of November 7, 2006. (AR 115). 12 Plaintiff s applications, finding her to be not disabled under [its] 13 rules. 14 D. Goodman (the ALJ ) was held on April 26, 2011. 15 Plaintiff amended her disability onset date to March 21, 2007. 16 65). 17 Plaintiff was disabled and entitled to disability benefits from March 18 21, 2007 to October 6, 2009. 19 Plaintiff was not disabled since October 7, 2009. (AR 78-82). Plaintiff alleged a The Agency denied A hearing before Administrative Law Judge James (AR 45-76). (AR 64- The ALJ issued his decision on June 17, 2011 finding that (AR 24-35). However, the ALJ found (AR 35-40). 20 21 22 The Appeals Council declined review on August 31, 2012. Plaintiff filed the instant action on November 30, 2012. 23 24 25 26 27 28 2 (AR 1-6). 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff is a former operations officer at a financial management 5 corporation. (AR 52-53). She was fifty-three years old at the time of 6 the hearing, forty-eight at the time of her first alleged disability 7 onset date of November 7, 2006, and forty-nine at the time of the 8 amended date of March 21, 2007. 9 school education. (AR 52). (AR 34, 51-52). Plaintiff has a high Plaintiff alleges that she suffers from 10 osteoarthritis of the right knee, status post anterior cruciate ligament 11 and posterior cruciate ligament repair, severe superficial peroneal 12 sensory neuropathy and severe medial plantar sensory neuropathy of the 13 left lower extremity, osteopenia of the left ankle and foot, and morbid 14 obesity. 15 right knee and left ankle on October 7, 2009. (AR 32, 273, 390-94). Plaintiff received surgeries on her (AR 242, 248). 16 17 A. Treating Doctors Opinions 18 19 Plaintiff began treatment, ranging from medication to injection 20 therapy, with treating podiatrist Dr. Leslie Levy in May 2010. (AR 330- 21 62). 22 treatment. 23 Plaintiff could lift less than ten pounds, stand and walk less than two 24 hours, and sit less than two hours in an eight-hour workday. 25 29). 26 and treatment. In January 2011, Plaintiff visited Dr. Levy for follow-up and (AR 330). Dr. Levy s evaluation included assessment that (AR 324- Dr. Levy observed that Plaintiff would need additional surgeries (AR 345-363). 27 28 3 1 B. Examining Physicians Opinions 2 3 The agreed upon medical evaluator in a separate worker s 4 compensation case, Dr. Albert Simpkins, Jr., reviewed the medical record 5 and examined Plaintiff in the doctor s capacity as an agreed medical 6 evaluator. 7 retained the ability to lift not more than twenty pounds, could not walk 8 or stand for more than six hours in an eight-hour workday, and was 9 precluded from repetitive kneeling or squatting, as well as prolonged 10 walking on uneven ground, weight bearing, stair climbing, kneeling, and 11 squatting. 12 repeat surgery for the right knee and the left ankle, including a 13 possible total knee replacement in the future. (AR 241-59, 386-99). (AR 255, 396). Dr. Simpkins opined that Plaintiff Dr. Simpkins stated that Plaintiff required (AR 256, 397). 14 15 Dr. Bruce De Carlo completed a musculoskeletal (AR 265-67). functional 16 assessment on April 22, 2010. Dr. De Carlo wrote that 17 Plaintiff requires repeat surgery of the right knee and the left ankle, 18 and that she also probably needs replacement of the right knee. 19 267). 20 and consultations. (AR He also wrote she would require injections and continued therapy (Id.). 21 22 C. State Agency Medical Consultant s Opinions 23 24 Non-examining State Agency medical consultant Dr. Paulette Harar 25 reviewed Plaintiff s record and provided an assessment in June 2010. 26 (AR 318). 27 lift and/or carry twenty pounds occasionally and ten pounds frequently, Dr. Harar determined that Plaintiff retained the ability to 28 4 1 sit for at least six hours in an eight-hour workday, and stand and/or 2 walk for about two hours in a workday, with occasional postural 3 limitations. (AR 315-18). 4 5 D. Third Party Report 6 7 Plaintiff s friend Maria Nieves completed a Function Report as a 8 third party. (AR 168-75). Ms. Nieves said Plaintiff cannot sit, stand, 9 or walk for long periods of time, and that Plaintiff is unable to sleep 10 because of pain. (AR 169). Ms. Nieves also reported that as a result 11 of two operations Plaintiff received, Plaintiff is unable to perform 12 all of the following: lifting, walking, stair climbing, squatting, 13 sitting, bending, kneeling, standing, completing tasks, and reaching. 14 (AR 173). 15 16 E. Plaintiff s Testimony 17 18 Plaintiff testified that her knees were in worse pain after her 19 operation than before. 20 any special assistance in showering or bathing, and that she drives an 21 automobile. 22 cream to her ankle, as well as some therapeutic exercises. 23 Plaintiff also testified that she can prepare her own meals and tidy 24 the area that [she] used although she can no longer really clean. 25 (AR 69-70). (AR 67). (AR 62). She testified that she does not need Plaintiff daily gives herself a massage with a 26 27 28 5 (AR 68-69). 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate a 5 medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)); see also 20 C.F.R. § 416.910 ( Substantial 10 gainful activity means work that - (a) involves doing significant and 11 productive physical or mental duties; and (b) is done (or intended) for 12 pay or profit. ). 13 performing the work he previously performed and incapable of performing 14 any other substantial gainful employment that exists in the national 15 economy. 16 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant incapable of Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 17 18 19 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 20 21 (1) Is the claimant presently engaged in substantial gainful 22 activity? 23 If not, proceed to step two. 24 (2) Is the If so, the claimant is found not disabled. claimant s impairment 25 claimant is found not disabled. 26 three. 27 28 6 severe? If not, the If so, proceed to step 1 (3) Does the claimant s impairment meet or equal the 2 requirements of any impairment listed at 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. 5 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 6 If so, the claimant is found not disabled. 7 proceed to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, If not, the If so, the claimant is found not disabled. 11 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 12 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 13 14 The claimant has the burden of proof at steps one through four, and 15 the Commissioner has the burden of proof at step five. Bustamante, 262 16 F.3d at 953-54. 17 establishing an inability to perform the past work, the Commissioner 18 must show that the claimant can perform some other work that exists in 19 significant numbers in the national economy, taking into account the 20 claimant s residual functional capacity ( RFC ), age, education and work 21 experience. 22 Commissioner may do so by the testimony of a vocational expert or by 23 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 24 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 25 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 26 claimant 27 limitations, the Grids are inapplicable and the ALJ must take the If, at step four, the claimant meets her burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). has both exertional (strength-related) 28 7 and The When a nonexertional 1 testimony of a vocational expert. 2 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 3 4 V. 5 THE ALJ S DECISION 6 7 On April 26, 2011, Plaintiff testified at a hearing held before ALJ 8 James D. Goodman. (AR 45-76). The ALJ and Kenneth Koszdin, Plaintiff s 9 attorney, questioned Plaintiff. (Id.). Plaintiff amended her 10 previously alleged disability onset date of November 7, 2006 to March 11 21, 2007. (AR 63-65). 12 13 The ALJ employed the five-step sequential evaluation process and 14 concluded that Plaintiff was disabled from March 21, 2007 to October 6, 15 2009. 16 engaged in substantial gainful activity since her alleged disability 17 onset date of March 21, 2007 because Plaintiff testified that she did 18 not work during the relevant period and there is no affirmative evidence 19 to contradict her testimony. (AR 31). At step two, the ALJ found that 20 Plaintiff had the following conditions: advanced osteoarthritis of the 21 right knee; 22 cruciate ligament repair; severe superficial peroneal sensory neuropathy 23 and 24 extremity; osteopenia of the left ankle and foot; and morbid obesity. 25 (AR 32). The ALJ dismissed Plaintiff s testimony regarding her shoulder 26 injury because Plaintiff also testified that her shoulder condition was 27 successfully treated. (Id.). The ALJ also dismissed Plaintiff s claims (AR 31-35). severe status medial At step one, the ALJ found that Plaintiff had not post anterior plantar sensory 28 8 cruciate ligament neuropathy of and the posterior left lower 1 about being depressed and anxious, finding that there was an absence of 2 any evidence in the record to support such impairments. (Id.). At step 3 three, the ALJ determined that for the relevant time period, Plaintiff 4 did not have an impairment or combination of impairments that met or 5 medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart 6 P, Appendix 1. (Id.). 7 8 The ALJ found that from March 21, 2007 to October 6, 2009, 9 Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. 10 § 404.1567(a) except that [Plaintiff] was unable to stand and/or walk, 11 or sit for a full eight hours in an eight-hour day on a regular and 12 sustained basis. 13 Plaintiff a more restrictive RFC than what her own worker s compensation 14 agreed medical evaluator, Dr. Simpkins, assigned her. (AR 33, 255, 314- 15 18). (AR 33). In making this finding the ALJ gave 16 17 At step four, the ALJ found that from March 21, 2007 to October 6, 18 2009, Plaintiff was unable to perform her past relevant work as an 19 operations officer, which is sedentary. (AR 33-34). 20 ALJ considered Plaintiff s age, education, work experience, and RFC. 21 (AR 34). 22 and was defined as a younger individual age 45-49. 23 has had at least high school education and is able to communicate in 24 English. 25 other occupations within the RFC as the ALJ found. 26 the ALJ found there were no jobs that existed in significant numbers in At step five, the Plaintiff was forty-nine on the onset date of March 21, 2007, (Id.). (Id.). Plaintiff Plaintiff s acquired job skills do not transfer to 27 28 9 (Id.). Therefore, 1 the national or local economy that Plaintiff could have performed. 2 (AR 34-35). 3 4 The ALJ then found that medical improvement occurred as of October 5 7, 2009, due to surgery, and that beginning on that date Plaintiff has 6 not had an impairment or combination of impairments that meets or 7 medically equals one of the impairments listed in 20 C.F.R. Part 404, 8 Subpart P, Appendix 1. 9 October 7, 2009 Plaintiff has had the RFC to perform sedentary work in 10 that she can lift and/or carry twenty pounds occasionally and ten pounds 11 frequently; stand and/or walk two hours and sit six hours in an eight- 12 hour work day with normal breaks; occasionally push and/or pull with her 13 left lower extremity; occasionally climb ramp, stairs, ladders, ropes, 14 or scaffolds; and occasionally balance, stoop, kneel, crouch, or crawl. 15 (AR 36). 16 impairments 17 symptoms, Plaintiff s statements concerning the intensity, persistence, 18 and limiting effects of those symptoms were not credible beginning on 19 October 7, 2009. (AR 35-36). The ALJ found that beginning on The ALJ found that while Plaintiff s medically determinable could reasonably be expected to produce her alleged (Id.). 20 21 In making this determination the ALJ gave substantial weight to the 22 opinion of the state agency medical consultant, Dr. Paulette Harar. (AR 23 38). 24 Simpkins, 25 Plaintiff. 26 perspective of Plaintiff s impairments and that Dr. Simpkins s opinion 27 is mostly consistent with that of Dr. Harar. (Id.). Dr. Simpkins found In addition, the ALJ gave some weight to the opinion of Dr. the worker s (Id.). compensation agreed medical evaluator for The ALJ noted Dr. Simpkins also had a longitudinal 28 10 1 that Plaintiff reached Maximal Medical Improvement after the surgery 2 and determined that Plaintiff could not lift more than twenty pounds, 3 could not walk or stand for more than six hours in an eight-hour 4 workday, and was precluded from prolonged walking on uneven ground, 5 weight bearing, and stair climbing, as well as repetitive or prolonged 6 squatting and kneeling. (AR 37-38). 7 8 The ALJ gave less weight to treating physician Dr. Leslie Levy, who 9 noted Plaintiff could not lift more than ten pounds, could stand and/or 10 walk less than two hours and sit less than two hours in an eight-hour 11 workday, could occasionally twist and climb stairs, but could never 12 stoop, crouch, climb ladders, reach, finger, or feel. (AR 38) 13 14 The ALJ gave no weight to the musculoskeletal functional 15 assessment, from the office of Dr. Bruce De Carlo, noting that the 16 physician did not sign the assessment. 17 noted that the assessment lacks a complete functional assessment of 18 [Plaintiff], as it primarily notes signs and symptoms. 19 regard to Plaintiff s obesity, the ALJ noted that nothing in the record 20 demonstrates that this impairment creates any functional limitations. 21 (AR 38). 22 exacerbated her other physical conditions and therefore considered it 23 in making the final RFC determination. (AR 39, 265-67). The ALJ also (AR 39). In However, the ALJ found nevertheless that Plaintiff s obesity (Id.). 24 25 The ALJ also considered the Third-Party Adult Function Report that 26 Plaintiff s friend, Maria Nieves, completed. 27 noted that Ms. Nieves s statements were not sworn and that this is a 28 11 (AR 39, 168-75). The ALJ 1 reasonable basis to question the validity of the report. (AR 39). The 2 ALJ further noted that Ms. Nieves appears to lack personal knowledge of 3 at least some of the claims presented because Ms. Nieves includes in the 4 report allegations regarding Plaintiff s sleep patterns, when Ms. Nieves 5 does not live with Plaintiff and has no intimate relationship with 6 Plaintiff. 7 simply 8 verification, which cast doubt on the reliability of the report as a 9 whole. (Id.). The ALJ found this to suggest that Ms. Nieves was repeating Plaintiff s allegations without independent (Id.). 10 11 The ALJ then found that the medical improvement that has occurred 12 is related to the ability to work, and that since October 7, 2009, 13 Plaintiff has been capable of performing past relevant work as an 14 operations officer because the work does not require the performance of 15 work-related activities precluded by Plaintiff s current RFC. 16 The ALJ therefore concluded that Plaintiff s disability ended on October 17 7, 2009. (Id.). (AR 40). 18 19 VI. 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. 24 Commissioner s decision when the ALJ s findings are based on legal error 25 or are not supported by substantial evidence in the record as a whole. 26 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 27 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 28 12 The court may set aside the Substantial evidence is 1 more than a scintilla, but less than a preponderance. Reddick, 157 2 F.3d at 720. 3 accept as adequate to support a conclusion. 4 substantial evidence supports a finding, the court must consider the 5 record as a whole, weighing both evidence that supports and evidence 6 that detracts from the [Commissioner s] conclusion. Aukland, 257 F.3d 7 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). It is relevant evidence which a reasonable person might Id. To determine whether 8 9 The ALJ's decision denying benefits will be disturbed only if that 10 decision is not supported by substantial evidence or it is based upon 11 legal error. 12 2005)(citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 13 reviewing the Commissioner's decision, the court may not substitute its 14 judgment for that of the Commissioner. 15 543 (9th Cir. 1996). 16 Commissioner applied the proper legal standards and whether substantial 17 evidence exists in the record to support the Commissioner's findings. 18 See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. In Macri v. Chater, 93 F.3d 540, Instead, the court must determine whether the 19 20 VII. 21 DISCUSSION 22 23 Plaintiff argues that the ALJ committed error for two reasons. 24 First, Plaintiff alleges that the ALJ s residual functional capacity 25 findings lack[] the support of substantial evidence. 26 of Pl. s Comp. at 3). 27 articulate legally sufficient reasons for discrediting [Plaintiff]. (Mem. in Supp. Second, Plaintiff alleges that the ALJ fails to 28 13 1 (Id. at 9). 2 For the reasons discussed below, the ALJ s decision is REVERSED. 3 4 5 A. The ALJ Failed To Provide Specific And Legitimate Reasons For Rejecting The Treating Doctor s Opinion 6 7 Plaintiff contends that the ALJ s RFC findings are improper because 8 the ALJ gave little weight to the January 2011 opinions by Dr. Levy, 9 Plaintiff s treating physician. (Mem. In Supp. Of Pl. s Comp. at 3-9). 10 11 Although the opinion of a treating physician is entitled to great 12 deference, it is not necessarily conclusive as to either the physical 13 condition or the ultimate issue of disability. 14 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 15 doctor contradicts a treating doctor s opinion, the Commissioner may 16 not reject [the treating doctor s] opinion without providing specific 17 and legitimate reasons supported by substantial evidence in the record 18 for doing so. 19 (9th Cir. 2003) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20 1995)). 21 when the treating physician s opinions conflict with those of a non- 22 examining physician and the non-examining physician s opinions are 23 consistent with the record. 24 (9th Cir. 1989). Morgan v. Comm r of When another Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 An ALJ may give less weight to a treating physician s opinions Magallanes v. Bowen, 881 F.2d 747, 751-55 25 26 27 28 14 1 In rejecting Dr. Levy s opinion, the ALJ stated the following: 2 3 I give less weight to the opinion of Dr. Levy, who noted that 4 the claimant could not lift more than ten pounds, could stand 5 and/or walk less than two hours and sit less than two hours 6 in an eight hour work day, could occasionally twist and climb 7 stairs but could never stoop, crouch, climb ladders, etc. 8 The possibility always exists that a doctor may express an 9 opinion in an effort to assist a patient with whom he or she 10 sympathizes for one reason or another. 11 which should be mentioned, is that patients can be quite 12 insistent 13 reports from their physicians, who might provide such a note 14 in order 15 unnecessary doctor/patient tension. and to demanding satisfy in their seeking patient s Another reality, supportive requests notes and or avoid 16 17 (AR 38) (emphasis added). 18 19 The stated reasons speculation about the doctor s improper 20 motives and Plaintiff s insistence - have absolutely no support 21 whatsoever in the record. 22 treating doctor s opinion, without any corroborating evidence, then 23 these reasons could be proffered in every case involving the rejection 24 of a treating doctor s opinion. 25 legitimate. If these are legitimate reasons to reject a These reasons are neither specific or 26 27 28 15 1 The ALJ attempts to bolster these reasons by stating that such 2 motives are more likely present in a case in which the treating doctor s 3 opinion substantially departs from the rest of the record. 4 In a conclusory fashion, the ALJ states that Dr. Levy s opinion departs 5 from the record evidence, but the ALJ s opinion omits any specific 6 examples or citations to demonstrate how Dr. Levy s opinion lacks 7 support in the record. 8 treatment are perhaps the most specific and detailed items of evidence 9 in the record, reflecting an ongoing and close treatment relationship considerable (AR 38). Dr. Levy s reports and records regarding 10 involving objective evidence to support Dr. Levy s 11 conclusions. 12 legitimate reasons, i.e., reasons supported by the record, in order to 13 reject Dr. Levy s opinion. As such, the ALJ was required to provide specific and Accordingly, remand is required. 14 15 B. The ALJ Failed To Provide Clear And Convincing Reasons To Reject Plaintiff s Testimony 16 17 18 Plaintiff argues that the ALJ failed to articulate 19 sufficient reasons for discrediting Plaintiff s testimony. 20 Supp. of Pl. s Comp. at 9). legally (Mem. in The Court agrees. 21 22 In assessing the credibility of a claimant s testimony regarding 23 subjective pain or the intensity of symptoms, the ALJ engages in a two- 24 step analysis. 25 (amended). 26 medical evidence of an underlying impairment which could reasonably be 27 expected to produce the pain or other symptoms alleged. Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) First, the ALJ must determine whether there is objective 28 16 1 Lingelfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). If the 2 claimant has presented such evidence, and there is no evidence of 3 malingering, then the ALJ must give specific, clear and convincing 4 reasons in order to reject the claimant s testimony about the severity 5 of the symptoms. Id. (quoting Lingenfelter, 504 F.3d at 1036). At the 6 same time, the ALJ is not required to believe every allegation of 7 disabling pain, or else disability benefits would be available for the 8 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A). 9 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Fair 10 11 In evaluating a claimant s testimony, the ALJ may use ordinary 12 techniques of credibility evaluation[.] 13 Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010) (quoting Smolen, 80 F.3d 14 at 1284). For instance, the ALJ may discredit a claimant s testimony 15 when claimant 16 indicating capacities that are transferable to a work setting. 17 Morgan, 169 F.3d at 600. 18 serve as clear and convincing grounds to reject such testimony. Thomas, 19 278 F.3d at 958-59. the reports participation Turner v. Comm r of Soc. in everyday activities See A claimant s conflicting testimony may also 20 21 Here, there was considerable medical evidence of underlying 22 impairments that supports Plaintiff s testimony. 23 observed 24 treatment, he neglected to address the fact that during the time the ALJ 25 found medical improvement, Plaintiff s medical records showed ongoing 26 severe pain, treated with injections and strong pain medication, as well 27 as contemplation of further surgeries. that Plaintiff s allegedly 28 17 disabling Although the ALJ pain improved (AR 37, 333-345 ). with Dr. Levy s 1 detailed records support Plaintiff s allegation that her condition 2 remained the same or worsened after surgery in October 2009. (Id.). 3 4 Plaintiff s testimony regarding her daily activities demonstrated 5 an extremely limited lifestyle that is not inconsistent with her 6 testimony. 7 Operations Consultant from June 1976 to June 2006) (AR 147) which adds 8 credibility to her claim that her ability to perform work-related 9 activities has diminished since her disability onset date. Plaintiff s 10 daily activities testimony does not undermine her claim that, because 11 of her impairments, she is no longer capable of doing her past work. 12 Remand is required. Plaintiff had a lengthy work history (employment as an 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),2 IT IS ORDERED that judgment be entered REVERSING the 6 decision of the Commissioner and REMANDING this action for further 7 proceedings consistent with this Memorandum and Order. IT IS FURTHER 8 ORDERED that the Clerk of the Court serve copies of this Order and the 9 Judgment on counsel for both parties. 10 11 DATED: August 27, 2013. 12 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 17 18 19 20 21 22 23 24 25 2 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment 27 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 28 19 26

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