Gilbert Angulo v. Michael J. Astrue, No. 5:2012cv01426 - Document 16 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: REQUEST to Proceed In Forma Pauperis, Declaration in Support 1 This Memorandum and Opinion will constitute the court's findings of fact and conclusions of law. After review the matter, the court concludes that the decision of the Commissioner must be reversed, and the matter remanded for a new hearing. The decision of the ALJ is REVERSED. (rh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 GILBERT ANGULO, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-01426-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for a 20 Period of Disability and Disability Insurance Benefits. 21 28 U.S.C. §636(c), the parties have consented that the case may be 22 handled by the Magistrate Judge. 23 §405(g), which authorizes the Court to enter judgment upon the 24 pleadings and transcript of the record before the Commissioner. 25 parties have filed the Joint Stipulation ( JS ), and the Commissioner 26 has filed the certified Administrative Record ( AR ). Pursuant to The action arises under 42 U.S.C. 27 Plaintiff raises the following issues: 28 1. The Whether the Administrative Law Judge ( ALJ ) properly 1 considered the opinions of medical expert Dr. Sparks (JS at 2 7-14); 3 2. 4 5 6 Whether the ALJ properly found medical improvement after April 6, 2006 (JS at 18-23); and 3. Whether the ALJ gave proper consideration to Plaintiff s testimony (JS at 27-33). 7 8 9 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court 10 concludes that the decision of the Commissioner must be reversed, and 11 the matter remanded for a new hearing. 12 13 I 14 BACKGROUND 15 On November 28, 2005, Plaintiff filed for a Period of Disability 16 and Disability Insurance Benefits for back pain and spinal injury. 17 (AR 54, 116.) 18 13, 1999, and the Date Last Insured ( DLI ) was December 31, 2004. 19 (AR 54, 104.) 20 initially and upon reconsideration, a hearing was held before ALJ 21 Belcher on October 16, 2007. 22 Belcher issued an opinion finding that Plaintiff was not disabled 23 through the DLI. 24 Court, and the Court remanded on the grounds that ALJ Belcher did not 25 address an inherent contradiction in medical expert Dr. Sparks 26 testimony that Plaintiff both met a listing for disorders of the spine Plaintiff claimed an alleged onset date of September After the agency rejected Plaintiff s application (AR 60.) (AR 54.) On November 28, 2007, ALJ Plaintiff appealed the decision to this 27 28 2 1 and had a sedentary Residual Functional Capacity ( RFC ).1 2 503-09.) 3 1160080 at *2-3 (C.D. Cal. April 24, 2009) ( Angulo I ).2 4 memorandum opinion and order, the Court detailed what the ALJ had to 5 do on remand: (AR 57, See also Angulo v. Astrue, No. CV 08-05149-VBK, 2009 WL In its 6 There is a clear and obvious contradiction between [Dr. 7 Sparks] s testimony that Plaintiff meets a Listing, and his 8 later testimony that Plaintiff has an RFC which would negate 9 a finding of disability. . . .In the case of an obvious and 10 fundamental contradiction, such as is presented by this 11 testimony, the Court finds that the ALJ was under a duty to 12 clarify the contradiction, in order to determine the ME s 13 ultimate opinion, and the basis for it. 14 that constitutes reversible error, and this matter will be 15 remanded for further hearing consistent with this decision. 16 The failure to do (AR 508.) 17 18 The Court also noted that since, on remand, the entire medical 19 record should be considered, Plaintiff s credibility needed to be 20 reevaluated based on de novo review, so it need not reach Plaintiff s 21 22 23 24 25 26 27 28 1 A RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 2 For purposes of brevity, the Court will not reiterate Plaintiff s extensive medical treatment history, as that has been sufficiently summarized in Angulo I. The Court only adds that since then, Plaintiff has continued to see Dr. Haider, his treating physician, and his complaints of back pain remain. (AR 414, 615, 609, 604, 602-03, 598, 596). In addition, Dr. Haider has reported restricted motion, spasms, difficulty changing positions, difficulty walking, among other symptoms. (See, e.g., AR 410, 414, 607, 600). 3 1 second issue, which asserted that the ALJ gave improper consideration 2 to Plaintiff s testimony. (AR 504, 508.) 3 On remand, newly assigned ALJ Radensky held a hearing on November 4 23, 2009 at which another medical expert, Dr. Lorber, testified over 5 the telephone. (AR 458.) Dr. Lorber summarized Plaintiff s treatment 6 record, and he concluded that Plaintiff met the listing during two 7 periods of time: September 13, 1999 to May 4, 2002, and April 6, 2005 8 to April 6, 2006. 9 had a sedentary RFC. (AR 462-64.) Otherwise, he opined that Plaintiff (AR 464.) 10 On January 21, 2010, ALJ Radensky issued a decision finding that 11 Plaintiff was disabled from September 14, 1999 to May 4, 2002 and from 12 November 4, 2004 to April 6, 2006. 13 that between May 5, 2002 to November 3, 2004 and from April 7, 2006 14 onward, Plaintiff s condition improved with respect to his ability to 15 work, and he was not disabled during those periods. (AR 451.) 16 explicitly adopted Dr. Lorber s finding that outside of the periods of 17 disability, Plaintiff had what amounts to a sedentary RFC. (AR 447.) (AR 451.) The ALJ also concluded He 18 19 DISCUSSION 20 I 21 THE ALJ PROPERLY CONSIDERED THE OPINIONS 22 OF MEDICAL EXPERT DR. SPARKS 23 Plaintiff s first claim is that on remand, ALJ Radensky did not 24 properly consider the opinions of Dr. Sparks, the medical expert from 25 the first administrative hearing, as required under Angulo I. (See JS 26 at 7-13.) 27 the rule of mandate because ALJ Radensky failed to mention, much less 28 synthesize, Dr. Sparks s testimony into his decision. (JS at 13.) In Specifically, Plaintiff asserts that the decision violates 4 1 response, the Commissioner argues that Dr. Lorber, the medical expert 2 on remand, came up with a reasonable rationale that detailed two 3 discrete periods of Plaintiff s medical history that coincided with 4 Dr. Sparks s assessments, while also supporting a closed period of 5 disability. 6 ALJ Radensky s decision is supported by substantial evidence. (JS at 16.) Furthermore, the Commissioner claims that 7 A federal district court may disturb the ALJ s decision only if 8 it contains legal error or if it is not supported by substantial 9 evidence.3 42 U.S.C. § 405(g). Therefore, the ultimate question is 10 whether ALJ Radensky s decision is supported by substantial evidence 11 or whether it contains legal error. 12 ALJ Ralenksy failed to mention Dr. Sparks s opinions from the first 13 hearing in his decision, his reliance on Dr. Lorber s testimony is 14 free of legal error. This Court finds that although 15 Plaintiff seems to argue that ALJ Radensky committed legal error 16 and cites to Quern v. Jordan, 440 U.S. 332, 347 n. 18 (1979) for the 17 rule of mandate doctrine, which requires that, on remand, the lower 18 court s actions must be consistent with both the letter and the spirit 19 of the higher court s decision. 20 F.Supp.2d 1199, 1215-1219 (C.D. Cal. July 25, 2005) (explicitly 21 applying the doctrine to the social security context when a district 22 court remands a case back to the ALJ). Plaintiff contends, then, that 23 ALJ Radensky s failure to cite to Dr. Sparks s opinions or grapple 24 with the contradictions in his testimony violates the rule of mandate 25 based on this Court s remand order. See also Ischay v. Barnhart, 383 (See JS at 13, AR 507-08.) 26 3 27 28 Substantial evidence is defined as relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 5 1 When it remanded the case, this Court found that the ALJ was 2 under a duty to clarify the contradiction, in order to determine [Dr. 3 Sparks s] 4 However, deeper analysis reveals at least two reasons why Plaintiff s 5 rule of mandate argument fails. ultimate opinion, and the basis for it. (AR 508.) 6 First, a proper reading of Angulo I is that when an ALJ adopts an 7 medical expert ( ME ) s inherently contradictory opinions to support 8 his findings, he cannot parse the doctor s testimony so as to accept 9 part of the testimony, and reject the contradictory part, without an 10 appropriate explanation. (AR 508.) Here, however, there is no 11 indication that ALJ Radensky relied upon Dr. Sparks s opinion in 12 reaching his decision. 13 and instead relies on Dr. Lorber s testimony to make his findings. 14 (See AR 447.) 15 notion that an ALJ must determine the ultimate opinion of an ME who 16 did not testify at his hearing and upon whose opinion he did not rely. 17 This is especially true when the ALJ found the testimony of the ME who 18 did testify at the hearing over which he presided more persuasive. 19 The ALJ is responsible for resolving ambiguities in the medical 20 evidence. 21 2008). 22 contains inconsistencies and ambiguities. 23 F.2d 341, 348 (9th Cir. 1991). 24 reasonably be read as a rejection, albeit silent, of Dr. Sparks s 25 opinions in favor of Dr. Lorber s testimony. 26 to discuss every piece of evidence, and is not required to discuss 27 evidence that is neither significant nor probative. Hiler v. Astrue, 28 687 F.3d 1208, 1212 (9th Cir. 2012) (quoting Howard ex rel. Wolff v. In fact, he does not mention Dr. Sparks at all A fair reading of Angulo I is counterintuitive to the Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. Furthermore, the ALJ need not accept any medical opinion that Bunnell v. Sullivan, 947 Here, ALJ Radensky s opinion can 6 An ALJ is not required 1 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)). 2 The leading rule of mandate case in the Social Security context 3 is easily distinguishable from this instant case. In Ischay, 383 4 F.Supp.2d 1199, to which Plaintiff cites (see JS at 13), the court 5 found that the ALJ violated the rule of mandate on remand by taking 6 evidence on matters beyond the single issue identified in the court s 7 order, which was solely to re-determine whether the claimant was 8 disabled at step five of the sequential evaluation. 9 F.Supp.2d at 1219, 1223. Ischay, 383 Subsequent Social Security cases applying 10 Ischay and the rule of mandate doctrine have done so under similar 11 circumstances. See, e.g., Coto v. Astrue, 2008 WL 4642965 at *5 (C.D. 12 Cal. Oct. 20, 2008) ( [T]he ALJ s decision to reconsider plaintiff s 13 RFC in this regard, and ultimately find that plaintiff has a greater 14 capacity for standing and walking, was not related to the issues on 15 remand. ); Sanchez v. Astrue, 2012 WL 3704756 at *13 (C.D. Cal. Aug. 16 27, 2012) (ALJ s decision exceeded scope of remand because ALJ was 17 only to explain step five discrepancy and impermissibly revisited 18 claimant s RFC at step four). 19 as narrowly written as those in cases where Ischay has been applied. 20 In fact, the Court included broad language in the order, indicating 21 that on remand, the entire medical record should be considered. (AR 22 508.) 23 Radensky to interpret Dr. Sparks s testimony when ALJ Radensky did not 24 use it in reaching his opinion.4 Here, the Court s remand order was not This language cannot be read so narrowly as to require ALJ Therefore, the Court finds that ALJ 25 4 26 27 28 To the extent that Plaintiff argues ALJ Radensky engaged in impermissible expert shopping by holding hearings until he found an expert who agreed with his conclusions (see JS at 17-18), this argument is unavailing. In cases where an ALJ is found to have engaged in expert shopping, there tend to be a series of hearings. (continued...) 7 1 Radensky did not violate the rule of mandate and that there was no 2 legal error. 3 Second, Plaintiff s argument is unconvincing because Dr. Lorber s 4 and Dr. Sparks s opinions are actually similar and reconcilable. 5 the 6 reasonably served to reconcile the ambiguous and conflicting evidence 7 presented by Dr. Sparks because both Dr. Sparks and Dr. Lorber found 8 Plaintiff met Listing 1.04, and Dr. Lorber was able to place into 9 context Dr. Sparks s seemingly contradictory opinions that, despite 10 meeting the Listing, Plaintiff could perform a limited range of light 11 work prior to December 2004 and sedentary work after December 2004. 12 (JS at 16.) Commissioner persuasively argues, Dr. Lorber s As testimony 13 Dr. Sparks testified that Plaintiff met a Listing as of December 14 13, 2004 and continued to meet it as of the hearing date on October 15 16, 2007. 16 before December 2004 and a sedentary RFC after December 2004. (AR 25- 17 26.) 18 and from April 6, 2005 to April 6, 2006, Plaintiff met the Listing.5 19 (AR 462-64.) 20 Listing, Dr. Lorber found that he had a sedentary RFC. 21 Essentially, Dr. Lorber s opinions included periods in Plaintiff s (AR 20-21.) He also opined that Plaintiff had a light RFC Dr. Lorber testified that from September 13, 1999 to May 4, 2002 For periods during which Plaintiff did not meet the (AR 464.) 22 23 24 25 26 27 28 4 (...continued) See, e.g., Ischay, 383 F.Supp.2d at 1210 (four hearings). The present case presents only two. 5 The Court notes that ALJ Radensky actually did not adopt Dr. Lorber s findings in their entirety. He explicitly credited Plaintiff s allegations of pain beginning November 4, 2004 in light of supporting medical records, so he found that Plaintiff s second period of disability began on November 4, 2004 and ran until April 6, 2006, beginning about five months earlier than Dr. Lorber s assessment. (AR 448, 451.) 8 1 medical history that satisfied Dr. Sparks s sedentary RFC finding (May 2 5, 2002 to April 6, 2005, and April 6, 2006 to the present) and 3 periods during which Dr. Sparks s finding that Plaintiff met a Listing 4 applied (September 13, 1999 to May 4, 2002, and April 6, 2005 to April 5 6, 2006).6 6 7 In conclusion, the Court finds that ALJ Radensky s decision does not violate the rule of mandate and is free of legal error. 8 9 II 10 THE ALJ IMPROPERLY FOUND MEDICAL IMPROVEMENT AFTER APRIL 5, 2006 11 Plaintiff argues that ALJ Radensky improperly found medical 12 improvement after April 2006 and summarizes Plaintiff s extensive 13 treatment record from 2006 to 2010. 14 the Commissioner contends that Plaintiff merely offers a contrary 15 interpretation of the evidence and that under such circumstances, this 16 Court must uphold the agency s decisions. (See JS at 18-21.) In response, (See JS at 26.) 17 As the Court explained earlier, the ALJ s decision can only be 18 disturbed if it contains legal error or it is not supported by 19 substantial evidence. 20 that the ALJ s finding that Plaintiff improved after April 6, 2006 21 does not rest on substantial evidence. 42 U.S.C. § 405(g). The Court is convinced 22 In order to find that disability ceased, there must be a finding 23 of medical improvement related to the ability to engage in work 24 activity. 20 C.F.R. § 404.1579(a)(2). When finding that Plaintiff s 25 6 26 27 28 The Court also finds that the two experts opinions are not necessarily as different as Plaintiff characterizes. For example, both found the same RFC, and they agree that Plaintiff at the very least met the Listing from April 6, 2005 to April 6, 2006. In addition, both testified that Plaintiff experienced improvement after surgery. (AR 23, 463-64.) 9 1 condition had improved since April 2006, ALJ Radensky wrote: 2 More 3 [Plaintiff] in no distress and remaining permanent and 4 stationary. 5 assistive device was required for ambulation. [cite to 6 exhibit] 7 conservative. [Plaintiff] s condition has again stabilized 8 and he tolerates his medications. 9 recently, Dr. Haider noted a pleasant affect, Medications were admittedly beneficial and no Reflexes are intact, strength full, and treatment [cite to exhibit] (AR 449.) 10 11 However, ALJ Radensky misstated the record. See Gallant v. 12 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (ALJ cannot attempt to 13 justify decision by ignoring competent evidence in the record that 14 suggests an opposite result). 15 required no assistive device for ambulation and cited to Dr. Haider s 16 reports dated October 2, 2006 and November 28, 2006. 17 The same report indicated that Plaintiff had difficulty walking, 18 changing position, and getting onto the examining table. It also 19 indicated region, 20 restricted motion, antalgic gait, muscle spasm, and painful symptoms. 21 that (AR 417, 420.) Plaintiff had For example, he noted that Plaintiff tenderness in the (AR 417, 420.) lumbar In addition, one later report by Dr. Haider shows 22 that Plaintiff required the assistance of a walker 23 2007 (AR 414), and the same report and others dated March 6, 2007 and 24 May 1, 2007 find the same symptoms and pain complaints. (AR 410-414.) 25 Finally, Dr. Haider prescribed Plaintiff 26 27 28 10 on January 23, a walking cane on February 1 2 10, 2010.7 (AR 436-37.) Further, ALJ Radensky incorrectly concluded that Plaintiff s 3 condition had stabilized and that he tolerated his medications. Even 4 on first glance, these reasons do not necessarily relate to medical 5 improvement related to Plaintiff s ability to work. 6 Radensky s support for this conclusion comes from Dr. Haider s reports 7 dated September 12, 2007 to September 9, 2009, but after reviewing 8 these reports, the Court finds that there is no indication Plaintiff s 9 condition improved in relation to his ability to do work. Second, ALJ These 10 reports continue to indicate that Plaintiff demonstrated an antalgic 11 gait, experienced difficulty walking and changing positions, and 12 presented restricted motion, tenderness in the spine, and muscle 13 spasms. 14 2008 indicated that Plaintiff tested positive for straight leg raising 15 in both a sitting and supine position to the right and the left, and 16 the same report noted significant deterioration of function and 17 active neurological deficits. 18 persistence of Plaintiff s symptoms and restrictions as documented by 19 these records, they cannot reasonably be interpreted as constituting 20 substantial evidence to support the conclusion that Plaintiff was no 21 longer disabled after April 2006. 22 Radensky s conclusion that Plaintiff s treatment was conservative is 23 not supported by substantial evidence. (AR 596, 598, 604, 607, 615.) One report dated November 18, (AR 602-03.) Given the continued The Court also finds that ALJ (AR 449.) Plaintiff s 24 7 25 26 27 28 The Commissioner claims that the cane was prescribed at Plaintiff s request, due to Plaintiff s uncorroborated claims of right leg weakness. (JS at 25.) There is no indication in the report that Plaintiff himself requested the cane. The report simply reads, The patient indicates that occasionally he feels like his right leg is giving out, causing him some near falls. We need to prevent any falls or further problems. Therefore, it s felt that he would benefit from use of a cane for ambulation. (AR 436.) 11 1 treatment includes taking Norco, Orudis, Prilosec, Zanaflex, Lyrica, 2 and using Lidoderm patches. 3 Lorber agreed that the prescriptions could be a sign that the treating 4 physician 5 conceded that the drugs are generally used for more than moderate 6 pain. 7 2007 to September 2009, Plaintiff s medication largely stayed the 8 same; 9 necessarily conservative.8 believes (AR 477-78.) there is no Plaintiff (AR 478.) suffers At the hearing, even Dr. from significant pain, and The record indicates that throughout September indication, however, that the treatment was (See AR 596-616.) 10 The Commissioner argues that any deterioration in Plaintiff s 11 condition after April 6, 2006 was brought on by his own failure to 12 attend physical therapy. 13 attend physical therapy in the fall of 2006, Plaintiff cannot be 14 faulted for this because the record establishes that he did not attend 15 because he did not have any transportation. 16 a 17 physical therapy, noting that it improved his symptoms. 18 However, even with the help of physical therapy, Dr. Haider s notes 19 continue to detail persistent pain, limited movement, and antalgic 20 gait, among other symptoms. 21 shows that Plaintiff s condition persisted in spite of physical 22 therapy and medication. 23 some relief from physical therapy and medication (see, e.g., AR 412, transportation (JS at 24.) authorization was Although Plaintiff failed to (AR 421.) issued, In fact, once Plaintiff (See AR 596-616.) did attend (AR 412.) The record clearly Again, although Plaintiff may have obtained 24 8 25 26 27 28 The Court notes that Dr. Haider did call the prescription of medications conservative in one report. (AR 598.) The Court does not find this dispositive given Dr. Lorber s testimony about the health circumstances under which these drugs are prescribed, and the fact that Dr. Haider ordered an MRI after significant deterioration in function. (AR 600.) The Court also adds to its analysis of whether Plaintiff s treatment was conservative in analyzing Plaintiff s third claim below. 12 1 596), this fails to answer the requisite question of whether 2 Plaintiff s condition improved with respect to his ability to work. 3 In conclusion, the Court finds that ALJ Radensky erred by 4 concluding that Plaintiff was not disabled after April 6, 2006, as 5 this conclusion is not supported by substantial evidence. 6 7 III 8 THE ALJ IMPROPERLY CONSIDERED PLAINTIFF S TESTIMONY 9 Plaintiff s third argument takes issue with the ALJ s conclusion 10 that Plaintiff s testimony at the hearing was not entirely credible. 11 (See 12 Radensky s summary of Plaintiff s daily activities does not rise to 13 the level of full time activity at any level of exertion, so his 14 reasoning is legally insufficient. (JS at 33.) 15 Commissioner properly 16 credibility based on a lack of objective medical evidence, Plaintiff s 17 activities 18 testimony and his conduct, and Plaintiff s conservative treatment.9 19 (JS at 35-37.) 20 The JS at 27-33.) asserts of Court daily finds factors In particular, that the living, that to ALJ Plaintiff inconsistencies although explain why ALJ he argues that ALJ In response, the devalued between Radensky Plaintiff s Plaintiff s used devaluated seemingly 21 permissible Plaintiff s 22 credibility, he did so without considering the record as a whole. 23 24 25 26 27 28 9 ALJ Radensky s other reasons for devaluing Plaintiff s credibility are unavailing because they are not probative of disability. Some of them fall outside of the post-April 2006 time period, including the fact that Plaintiff reported progress after his first surgery, that he underwent vocational rehabilitation, and that he was cleared for light work. (See AR 449.) It is immaterial, too, that Dr. Haider found Plaintiff permanent and stationary (AR 449), because all this means is maximal medical improvement without substantial change expected. 8 C.C.R. § 10116.9. 13 1 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 2 Subjective complaints of pain in excess of what an impairment 3 would normally be expected to produce are subject to credibility 4 assessment by an ALJ. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th 5 Cir. 2001). 6 are not credible, an ALJ must specifically make findings that support 7 this conclusion, Bunnell, 947 F.2d at 345, and provide clear and 8 convincing reasons. In order to find that a claimant s subjective complaints Rollins, 261 F.3d at 857. 9 First, ALJ Radensky devalued Plaintiff s credibility because he 10 found the objective medical evidence did not comport with Plaintiff s 11 testimony regarding his pain and limitations. 12 objective 13 subjective complaints, it is, nevertheless, one of the considerations. 14 Bunnell, 947 F.2d at 345. 15 Dr. Haider s finding on November 18, 2008 of active neurological 16 deficits and his finding of radicular symptoms on May 5, 2009, 17 actually helps substantiate Plaintiff s pain testimony. 18 598.) evidence, standing alone, is Although a lack of insufficient to reject Objective medical evidence, particularly (See AR 602, 19 Second, the ALJ depreciated Plaintiff s testimony because he felt 20 that Plaintiff s daily activities demonstrated an ability to work. 21 (AR 15). 22 claimant s credibility. 23 (9th Cir. 1989). 24 appointments, was able to microwave meals, and cleaned up after 25 himself. 26 an hour at one time and for several hours in one day, to stand for 27 thirty minutes, to and lift a gallon of milk. 28 Plaintiff persuasively argues, ALJ Radensky failed to explain how Daily activities are a permissible factor in considering a See, e.g., Fair v. Bowen, 885 F.2d 597, 603 ALJ Radensky noted that Plaintiff drove to doctor s (AR 449.) He also cited to Plaintiff s capacity to sit for 14 (AR 449.) However, as 1 driving what potentially is a short distance, microwaving meals, and 2 cleaning up after oneself translates into the ability to work full- 3 time at a sedentary range of exertion. 4 Plaintiff s capacity to sit for an hour comes from his testimony that 5 he watched television for that time range, but he also testified that 6 he watched television in a recliner because he got tired just like 7 this or just sitting down straight up. 8 thirty minutes and carrying a gallon of milk are also not necessarily 9 dispositive on the issue of disability. (JS at 30.) (AR 489.) In addition, Standing for See, e.g., Fair, 885 F.2d at 10 603 (noting that many home activities are not easily transferable to 11 what may be the more grueling environment of the workplace ).10 12 Third, ALJ Radensky gave weight to a seeming inconsistency: that 13 Plaintiff testified to using an ambulatory device but did not bring 14 one 15 inconsistencies when evaluating a claimant s credibility, ALJ Radensky 16 took these statements out of context. 17 1104, 1112 (9th Cir. 2012) (including inconsistencies as an ordinary 18 technique of credibility evaluation). 19 used the walker for longer distances, usually more than five blocks, 20 or when he was going to exercise. to the hearing. (AR 449.) While an ALJ can consider Molina v. Astrue, 674 F.3d Plaintiff explained that he (AR 479-80.) 21 Finally, the ALJ characterized Plaintiff s treatment history as 22 conservative. Conservative or infrequent treatment may be used by the 23 ALJ to refute allegations of disabling pain. 24 60 F.3d 1428, 1434 (9th Cir. 1995). 25 that Plaintiff s full See Johnson v. Shalala, Here, the Court explicitly notes treatment history includes multiple 26 27 28 10 The Court also finds persuasive the daily activities that Plaintiff testified he did not engage in, including grocery shopping, laundry, and attending religious services. (AR 485-88.) 15 1 decompression and fusion operations, hernia repair, hardware removal, 2 MRI tests and discograms, all of which cannot reasonably be classified 3 as conservative. 4 28). 5 6 (AR 163-169, 289-90, 277-278, 186, 216, 217, 227- In conclusion, ALJ Radensky did not provide clear and convincing reasons for devaluating Plaintiff s credibility. 7 8 9 10 11 CONCLUSION For the foregoing reasons, the decision of the ALJ is REVERSED. The matter is REMANDED for further hearing. IT IS SO ORDERED. 12 13 14 DATED: June 25, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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