Anders v. Colvin, No. 2:2013cv00344 - Document 21 (E.D. Wash. 2015)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; granting 17 Plaintiff's Motion for Summary Judgment; denying 18 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Fred Van Sickle. (CV, Case Administrator)

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Anders v. Colvin Doc. 21 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 DEAN L. ANDERS, 3 NO: CV-13-0344-FVS Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 4 v. 5 CAROLYN W. COLVIN, 6 Defendant. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 BEFORE THE COURT are the parties’ cross motions for summary judgment. ECF Nos. 17 and 18. This matter was submitted for consideration without oral argument. Plaintiff was represented by Dana C. Madsen. Defendant was represented by Catherine Escobar. The Court has reviewed the administrative record and the parties’ completed briefing and is fully informed. For the reasons discussed below, the court grants Plaintiff’s Motion for Summary Judgment and denies Defendant’s Motion for Summary Judgment. JURISDICTION Plaintiff Dean L. Anders protectively filed for supplemental security income (“SSI”) on November 8, 2010 alleging an onset date of February 25, 2010. Tr. 172177. Benefits in this application were denied initially and upon reconsideration. Tr. 117-124, 129-139. Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held before ALJ Gene Duncan on March 18, 2011. Tr. 45-93. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 Dockets.Justia.com 1 Plaintiff was represented by counsel and testified at the hearing. Tr. 48-55, 60-81. 2 Medical expert James M. Haynes, M.D. and vocational expert Deborah Lapoint, 3 Ph.D. also testified. Tr. 55-60, 81-92. The ALJ found the claimant was disabled for 4 the closed period of November 8, 2010 through December 31, 2011 (Tr. 30), but 5 found medical improvement occurred as of January 1, 2012 (Tr. 33-34) and 6 therefore denied benefits after that date. Tr. 17-38. The Appeals Council denied 7 review. Tr. 1. The matter is now before this court pursuant to 42 U.S.C. § 405(g). 8 STATEMENT OF FACTS 9 The facts of the case are set forth in the administrative hearing and 10 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 11 and will therefore only be summarized here. 12 Plaintiff was 46 years old at the time of the hearing. Tr. 172. He quit school 13 in the ninth grade but did receive his GED. Tr. 49. Plaintiff’s most recent 14 employment was temporary “labor ready type work” such as moving and 15 dishwashing jobs. Tr. 51. Previous employment included carpenter, tree planter, 16 loader, masonry, insulation installer, and logger. Tr. 54, 213. Plaintiff claims 17 disability based on neck and back problems including degenerative disc disease. 18 Tr. 51-52, 129. He testified his pain is 7 out of 10 on a regular basis and sometimes 19 is a 10. Tr. 54. He testified he “don’t hardly do anything with [his] right side” and 20 cannot lift at all on that side. Tr. 62-63. Plaintiff testified that he is in pain when he ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2 1 bends over or squats down. Tr. 74-75. He testified he cannot sit or stand for more 2 than an hour, and can walk a mile “sometimes.” Tr. 75. Plaintiff testified he has 3 “extreme” anxiety and depression. Tr. 65. He testified that he has low energy, 4 difficulty concentrating on tasks, and does not get along with people. Tr. 65, 68-69. 5 STANDARD OF REVIEW 6 A district court's review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited: the Commissioner's decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158–59 (9th Cir.2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 11 relevant evidence that “a reasonable mind might accept as adequate to support a 12 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 13 substantial evidence equates to “more than a mere scintilla[,] but less than a 14 preponderance.” Id. (quotation and citation omitted). In determining whether this 15 standard has been satisfied, a reviewing court must consider the entire record as a 16 whole rather than searching for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. If the evidence in the record “is susceptible 19 to more than one rational interpretation, [the court] must uphold the ALJ's findings 20 if they are supported by inferences reasonably drawn from the record.” Molina v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 3 1 Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). Further, a district court “may not 2 reverse an ALJ's decision on account of an error that is harmless.” Id. at 1111. An 3 error is harmless “where it is inconsequential to the [ALJ's] ultimate nondisability 4 determination.” Id. at 1115 (quotation and citation omitted). The party appealing 5 the ALJ's decision generally bears the burden of establishing that it was harmed. 6 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 7 8 9 SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant's impairment must be 14 “of such severity that he is not only unable to do his previous work[,] but cannot, 15 considering his age, education, and work experience, engage in any other kind of 16 substantial gainful work which exists in the national economy.” 42 U.S.C. § 17 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4) (i)-(v). At step one, the Commissioner ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 4 1 considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activities, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant's impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. Id. 13 At step three, the Commissioner compares the claimant's impairment to 14 several impairments recognized by the Commissioner to be so severe as to 15 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a) (4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416 .920(d). 19 20 If the severity of the claimant's impairment does meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 5 1 claimant's “residual functional capacity.” Residual functional capacity (“RFC”), 2 defined generally as the claimant's ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 5 analysis. 6 At step four, the Commissioner considers whether, in view of the claimant's 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 9 If the claimant is capable of performing past relevant work, the Commissioner 10 must find that the claimant is not disabled. 20 C.F.R. § § 404.1520(f); 416.920(f). 11 If the claimant is incapable of performing such work, the analysis proceeds to step 12 five. 13 At step five, the Commissioner considers whether, in view of the claimant's 14 RFC, the claimant is capable of performing other work in the national economy. 20 15 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a) (4)(v). In making this determination, the 16 Commissioner must also consider vocational factors such as the claimant's age, 17 education and work experience. Id. If the claimant is capable of adjusting to other 18 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 19 404.1520(g)(1); 416.920(g) (1). If the claimant is not capable of adjusting to other 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 6 1 work, the analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. Id. 3 The claimant bears the burden of proof at steps one through four above. 4 Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.2010). If 5 the analysis proceeds to step five, the burden shifts to the Commissioner to 6 establish that (1) the claimant is capable of performing other work; and (2) such 7 work “exists in significant numbers in the national economy.” 20 C.F.R. § § 8 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 9 After determining Plaintiff was disabled beginning November 8, 2010, the 10 ALJ was then required to determine whether disability continued through the date 11 of the decision by performing the seven step sequential evaluation process pursuant 12 to Title II regulations. Tr. 23-24; 20 C.F.R. § 404.1594. 13 14 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 15 activity since November 8, 2010, the date the claimant became disabled. Tr. 24. At 16 step two, the ALJ found that from November 8, 2010 through December 31, 2011 17 Plaintiff had the following severe impairments: status post fusion at C6-7; status 18 post right shoulder subacromial decompression with clavicle resection; major 19 depression; pain disorder due to psychological factors and general medical 20 condition; and personality disorder with cluster B features. Tr. 24. At step three, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 7 1 the ALJ found that Plaintiff did not have an impairment or combination of 2 impairments that meets or medically equals the severity of one of the listed 3 impairments in 20 C.F.R. Part 404, Subpt. P, App’x 1. Tr. 27. The ALJ then 4 determined that from November 8, 2010 through December 31, 2011, Plaintiff had 5 the RFC 6 7 8 9 10 11 12 to perform light work as defined in 20 CFR 416.967(b) that is routine, or learned. He is limited to no use of the right upper extremity. He cannot engage in climbing of ladders, working at heights or near hazards, or with vibrating equipment. He can work where there is no face-to-face public contact. He would work best with objects, not people, in his own space where he would not be distracted by coworkers or be an occasional distraction to coworkers. He would work best with supervision that is seldom, tolerant, and provides hands on training as necessary. He works best without intense interaction with coworkers. He cannot work where there is direct access to drugs or alcohol or where he is responsible for the security of others. He would be expected to be off task 5% of the workday in small increments. He should avoid complex, high stress work. He would work best with goals and not deadlines. He cannot perform fast-paced production rate work. 13 Tr. 28. At step four, the ALJ found Plaintiff has no past relevant work. Tr. 29. At 14 step five, the ALJ found that from November 8, 2010 through December 31, 2011, 15 considering the Plaintiff’s age, education, work experience, and RFC, there were 16 no jobs that existed in significant numbers in the national economy that Plaintiff 17 could have performed. Tr. 29-30. The ALJ concluded that Plaintiff was under a 18 disability, as defined in the Social Security Act, from November 8, 2010 through 19 December 31, 2011. Tr. 30. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8 1 After he found Plaintiff disabled, the ALJ performed the seven step 2 sequential evaluation used to determine if his condition improved prior to the date 3 of the decision. Tr. 30-34. At step one, the ALJ found Plaintiff had not developed 4 new impairments since January 1, 2012, the date Plaintiff’s disability ended, and 5 thus Plaintiff’s severe impairments are the same as those present from November 6 8, 2010 through December 31, 2011. Tr. 30. At step two, the ALJ determined there 7 was medical improvement as of January 1, 2012, and at step three the ALJ found 8 the improvement is related to the ability to work because there has been an 9 increase in the Plaintiff’s residual functional capacity. Tr. 30-31. Having found 10 Plaintiff’s improvement increased his ability to work, the ALJ proceeded to step 11 six where he found that beginning January 1, 2012 Plaintiff had the RFC 12 13 14 15 16 17 18 to perform light work as defined in 20 CFR 416.967(b) that is routine, or learned. He is limited to no more than frequent use of the right upper extremity, and should avoid overhead work. He cannot engage in climbing of ladders, working at heights or near hazards, or with vibrating equipment. He can work where there is no face-to-face public contact. He would work best with objects, not people, in his own space where he would not be distracted by coworkers or be an occasional distraction to coworkers. He would work best with supervision that is seldom, tolerant, and provides hands on training as necessary. He works best without intense interaction with coworkers. He cannot work where there is direct access to drugs or alcohol or where he is responsible for the security of others. He would be expected to be off task 5% of the workday in small increments. He should avoid complex, high stress work. He would work best with goals and not deadlines. He cannot perform fast-paced production rate work. 19 Tr. 31. Because the ALJ found Plaintiff had no past relevant work, he went on to 20 step seven where he found that beginning January 1, 2012, considering the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 1 Plaintiff’s age, education, work experience, and RFC, there have been jobs that 2 exist in significant numbers in the national economy that Plaintiff can perform, 3 specifically, housekeeper/cleaner. Tr. 33-34. The ALJ concluded that Plaintiff’s 4 disability ended January 1, 2012. Tr. 34. 5 ISSUES 6 The question is whether the ALJ’s decision is supported by substantial 7 evidence and free of legal error. Specifically, Plaintiff asserts: 1 (1) the ALJ 8 improperly discounted Plaintiff’s credibility; (2) substantial evidence does not 9 support the ALJ’s finding of medical improvement; and (3) the ALJ improperly 10 weighed the medical opinion evidence. ECF No. 17 at 9-15. Defendant argues: (1) 11 the ALJ reasonably found that Plaintiff’s testimony was not fully credible; and (2) 12 substantial evidence supports the ALJ’s weighing of the medical opinions. ECF 13 No. 18 at 6-20. 14 1 15 by substantial evidence because the ALJ did not “explore [Plaintiff’s] sex offender 16 status in the RFC, nor did the VE take it into account in determining [sic] that 17 [Plaintiff’s] ability to engage in work as a housekeeper/cleaner.” ECF No. 17 at 14- 18 15. The court declines to address this issue as it was not raised with specificity in 19 Plaintiff’s opening brief. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 20 1155, 1161 n.2 (9th Cir. 2008). Plaintiff also cursorily argues that the ALJ’s RFC determination is not supported ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 1 2 3 DISCUSSION A. Credibility In social security proceedings, a claimant must prove the existence of 4 physical or mental impairment with “medical evidence consisting of signs, 5 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A claimant's 6 statements about his or her symptoms alone will not suffice. Id. Once an 7 impairment has been proven to exist, the claimant need not offer further medical 8 evidence to substantiate the alleged severity of his or her symptoms. Bunnell v. 9 Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc). As long as the impairment 10 “could reasonably be expected to produce [the] symptoms,” the claimant may offer 11 a subjective evaluation as to the severity of the impairment. Id. This rule 12 recognizes that the severity of a claimant's symptoms “cannot be objectively 13 verified or measured.” Id. at 347 (quotation and citation omitted). 14 If an ALJ finds the claimant's subjective assessment unreliable, “the ALJ 15 must make a credibility determination with findings sufficiently specific to permit 16 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's 17 testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). In making this 18 determination, the ALJ may consider, inter alia: (1) the claimant's reputation for 19 truthfulness; (2) inconsistencies in the claimant's testimony or between his 20 testimony and his conduct; (3) the claimant's daily living activities; (4) the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 1 claimant's work record; and (5) testimony from physicians or third parties 2 concerning the nature, severity, and effect of the claimant's condition. Id. Absent 3 any evidence of malingering, the ALJ's reasons for discrediting the claimant's 4 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 5 661, 672 (9th Cir.2012) (quotation and citation omitted). 6 The ALJ found “the claimant’s statements concerning the persistence and 7 limiting effects of [his] symptoms are not entirely credible.” Tr. 32. Plaintiff argues 8 the ALJ failed to provide specific, clear, and convincing reasons for discrediting 9 Plaintiff’s testimony. ECF No. 17 at 10-12. The court agrees. First, the ALJ found 10 Plaintiff “has a very poor work history combined with a 13 or 14-year prison 11 history, 2 and no real effort to look for work, working only two temporary jobs in 12 2010.” Tr. 32. Poor work history is generally an appropriate factor to consider 13 when evaluating Plaintiff’s credibility. Thomas, 278 F.3d at 959. In this case, 14 2 15 evidence including criminal history. See Bunnell, 947 F.2d at 346; Albidrez v. 16 Astrue, 504 F.Supp.2d 814, 822 (C.D. Cal. 2007) (convictions for crimes of moral 17 turpitude are proper basis for adverse credibility determination). However, as 18 correctly noted by Plaintiff, the relevance of his criminal history in this context is 19 unclear, and does not qualify as a specific, clear and convincing reason to discount 20 Plaintiff’s credibility. ECF No. 17 at 10. An ALJ may discredit a claimant’s allegations based on relevant character ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 1 however, the ALJ’s reasoning is not supported by substantial evidence in the 2 record. While not acknowledged by the ALJ, the record indicates that Plaintiff did 3 work during his period of incarceration from 1998-2009 as a kitchen worker, 4 maintenance worker, and in the “furniture factory” and “food factory.” Tr. 213, 5 217-220. The ALJ also does not offer evidence to support his finding that Plaintiff 6 had “a very poor work history” when not incarcerated. Tr. 32. Finally, the ALJ 7 asserts that Plaintiff made “no real effort to look for work, working only two 8 temporary jobs in 2010.” Tr. 32. However, Plaintiff testified that he did attempt to 9 return to work in 2010 but could not because of the pain. Tr. 51. In this context, the 10 “two temporary jobs” offered by the ALJ as evidence of a lack of “effort” on 11 Plaintiff’s part are more appropriately interpreted as support for his Plaintiff’s 12 testimony that he did attempt to return to work in 2010. Tr. 32. Overall, this reason 13 was not specific, clear and convincing. 14 Second, the ALJ found Plaintiff’s daily activities of “riding a bicycle, 15 picking up trash (apparently as part of his ongoing probation), attending classes, 16 and taking the bus to get places … are inconsistent with his claims of total 17 disability due to inability to be around people or because of significant, limiting 18 pain.” Tr. 33. Evidence about daily activities is properly considered in making a 19 credibility determination. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). It is 20 well-settled that a claimant need not be utterly incapacitated in order to be eligible ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 1 for benefits. Id.; see also Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“the 2 mere fact that a plaintiff has carried on certain activities…does not in any way 3 detract from her credibility as to her overall disability.”). However, there are two 4 grounds for using daily activities to form the basis of an adverse credibility 5 determination. See Orn, 495 F.3d at 639. First, the daily activities may contradict a 6 claimant’s other testimony. Id.; Molina, 674 F.3d at 1113 (“Even where those 7 activities suggest some difficulty functioning, they may be grounds for discrediting 8 the claimant’s testimony to the extent that they contradict claims of a totally 9 debilitating impairment.”). Second, daily activities may be grounds for an adverse 10 credibility finding if a claimant is able to spend a substantial part of his or her day 11 engaged in pursuits involving the performance of physical functions that are 12 transferable to a work setting. Orn, 495 F.3d at 639. 13 In making a credibility finding, the ALJ “must specifically identify the 14 testimony she or he finds not to be credible and must explain what evidence 15 undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 16 2001). Here, the ALJ does not identify the specific testimony he finds not to be 17 credible, nor did he offer explanations for why the evidence undermines Plaintiff’s 18 testimony. As noted by Plaintiff, and seemingly confirmed by the record, the daily 19 activities noted by the ALJ are “limited, modified, and not demanding.” ECF No. 20 17 at 11. Plaintiff testified that he used to ride his mountain bike often, but lately ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 1 rides just “a little bit as best [he] can.” Tr. 69. He testified that gets around by 2 walking or taking a bus pass “if he has one,” and he reported to a medical provider 3 that he was homeless and did not have a valid driver’s license so he “relies on 4 walking.” Tr. 76, 358. The ALJ does not analyze how this limited physical activity 5 is incompatible with the level of disability claimed by the Plaintiff. Although not 6 specifically cited by the ALJ, the record also indicates that in 2011 Plaintiff took a 7 Moral Recognition Therapy (“MRT”) class “at the suggestion of his CO” and 8 “pick[ed] up trash as a way of contributing.” Tr. 394. Another record states 9 Plaintiff was “following through” with “required classes, groups.” Tr. 387. Again, 10 these records do not contain enough detail to sufficiently determine whether the 11 level of physical activity or involvement with other people contradicted Plaintiff’s 12 claims of disability. See Thomas, 278 F.3d at 958 (ALJ must “make a credibility 13 determination with findings sufficiently specific to permit the court to conclude 14 that the ALJ did not arbitrarily discredit claimant’s testimony.”) Finally, the ALJ 15 does not make any findings that these “daily activities” are performed for a 16 substantial part of the day or in a manner transferable to the workplace. For all of 17 these reasons, the ALJ’s finding regarding Plaintiff’s daily activities is not 18 supported by substantial evidence and therefore this is not a clear and convincing 19 reason to find Plaintiff not credible. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 15 1 Third, and finally, the ALJ found that Plaintiff’s claimed limitations were 2 not supported by the objective medical record. Tr. 32-33. While medical evidence 3 is a relevant factor in determining the severity of a claimant’s disabling effects, 4 subjective testimony may not be rejected solely because it is not corroborated by 5 objective medical findings. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 6 2001). As discussed above, the ALJ’s other reasons for rejecting Plaintiff’s 7 testimony are not clear, convincing, and supported by substantial evidence. As 8 such, even if the objective medical evidence does not support the level of 9 impairment claimed, the negative credibility finding is inadequate because a lack 10 11 of objective evidence cannot be the sole basis for discrediting Plaintiff’s testimony. Based on the foregoing, the ALJ failed to cite specific, clear and convincing 12 reasons, supported by substantial evidence, for the adverse credibility finding. On 13 remand, the ALJ should reconsider the credibility finding. 14 15 B. Medical Improvement / Medical Opinion Evidence Once a claimant is found disabled, a presumption of continuing disability 16 arises. See Bellamy v. Sec’y of Health and Human Serv., 755 F.2d 1380, 1381 (9th 17 Cir. 1985). Although the claimant retains the burden of proof, the burden of 18 production shifts to the Commissioner to produce evidence sufficient to rebut this 19 presumption. Id. Disability benefits cannot be terminated unless substantial 20 evidence demonstrates medical improvement in the claimant’s impairment so that ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 1 the claimant is able to engage in substantial gainful activity. See 42 U.S.C. § 2 423(f); 20 C.F.R. § 404.1594(a); Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 3 1983). Medical improvement is defined as 4 any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s). 5 6 7 20 C.F.R. § 404.1594(b). 8 Here, the ALJ found medical improvement occurred as of January 1, 2012 9 based on three pieces of evidence. Plaintiff argues “[t]here is no substantial 10 evidence to support the decision of the ALJ that [Plaintiff] improved by December 11 31, 2010 3 and regained the ability to work.” ECF No. 17 at 9. The court agrees. 12 First, the ALJ found that orthopedic treatment records in July 2011 indicate 13 Plaintiff was “doing well postoperatively both with his neck and right shoulder.” 14 Tr. 30, 370. However, this single record is not substantial evidence of medical 15 improvement as shown by changes in symptoms, signs or laboratory findings. 16 Moreover, the ALJ fails to acknowledge that records in 2011 after both surgeries 17 18 19 3 20 references the date as December 31, 2011 throughout the rest of his brief. Plaintiff misstates the date of alleged medical improvement here, but correctly ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 17 1 include multiple complaints and diagnoses of chronic pain in Plaintiff’s neck and 2 right shoulder. Tr. 367, 370, 381, 387, 400, 409. 3 Second, in support of his medical improvement finding, the ALJ found that 4 “by September 2011,” Dr. Kingsley Ugorji “opined at Exhibit 15F that [Plaintiff] 5 could begin job retraining.” Tr. 30, 410, 417. In the portion of his decision 6 analyzing opinion evidence, the ALJ similarly relied on Dr. Ugorji’s opinion that 7 “Plaintiff could work in three more months with job retraining.” Tr. 33, 410, 417. 8 The record relied on by the ALJ is a letter written by Dr. Ugorji on September 21, 9 2011 and is recounted below in its entirety. 10 11 12 13 [Plaintiff] is currently under my medical care and may not return to work in construction given his current chronic shoulder symptoms/pain. I have [sic] advice him to contact DR to consider vocational rehabilitation to help him go back to work. If he is still unable to go back to work in the next 3 month[s] I will refer him for a functional capacity evaluation to determine his ability to work. Please excuse him for 3 month(s) while he make[s] arrangement for job retraining. If you require additional information please contact our office. 14 Tr. 417. Dr. Ugorji’s notes from the same date also indicate that Plaintiff was 15 informed “his surgery was 4 months ago and she should be nearly fully recovered 16 for now…[and] he may need vocation[al] rehabilitation to help seek another line of 17 employment since going back [to] construction is very unlikely.” Tr. 410. Plaintiff 18 argues that the ALJ’s finding misstates this record. ECF No. 17 at 13. The court 19 agrees. Defendant contends that the ALJ could reasonably infer from Dr. Ugorji’s 20 letter that Plaintiff was not totally disabled because he would be able to perform ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 18 1 “some type of work” after three months. ECF No. 18 at 14; See Molina, 674 F.3d 2 at 1111 (if evidence in the record “is susceptible to more than one rational 3 interpretation, [the court] must uphold the ALJ's findings if they are supported by 4 inferences reasonably drawn from the record.”) However, the note from Dr. Ugorji 5 specifically notes that if Plaintiff is unable to work in the next three months, he 6 will send the Plaintiff for further evaluation to determine “his ability to work.” Tr. 7 417. There is no evidence in the record that Plaintiff was sent for further evaluation 8 regarding his ability to work, nor is there any record of vocational retraining. Most 9 importantly, at no point does Dr. Ugorji opine that there is a decrease in the 10 medical severity of Plaintiff’s medical impairments as required for a finding of 11 medical improvement. See 20 C.F.R. § 404.1594. 12 Third, the ALJ relied on the testimony of non-examining medical expert Dr. 13 Haynes that Plaintiff had “reasonable strength in his arm after his surgery and 14 would have had the ability to use his right upper extremity on an “unlimited” basis 15 below shoulder height, although he would continue to have some trouble with 16 work above shoulder height.” Tr. 31, 58. A non-examining physician’s opinion is 17 not, by itself, substantial evidence of medical improvement. See Lester, 81 F.3d at 18 831-32; Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993) (citing Pitzer v. 19 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990) (“the non-examining physician’s 20 conclusion, with nothing more, does not constitute substantial evidence…”) (italics ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 19 1 in original); Cf. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 2 (opinion of a non-examining medical expert may serve as substantial evidence 3 when consistent with other independent evidence in the record). The only objective 4 evidence cited by Dr. Haynes in his testimony is the post-operative visit in 5 “January, 2011” that indicates “neck and arms are very good.” Tr. 58, 315. 6 However, a review of the record reveals that on January 26, 2011 Plaintiff reported 7 to a physical therapist that after his neck surgery he was experiencing pain in his 8 cervical spine, and pain and stiffness in his upper and mid back. Tr. 326. 9 Moreover, despite some evidence of improvement in his neck pain after his neck 10 surgery in December 2010 (See Tr. 333), Plaintiff did not have shoulder surgery 11 until May 2011, well after the post-operative report cited by Dr. Haynes from 12 January 2011. Tr. 347-48. Records from January 2011 through May 2011 show 13 consistent treatment of Plaintiff’s “chronic” right shoulder pain. Tr. 331, 343-44, 14 349, 352-53. After surgery in May 2011, the record continues to document ongoing 15 and consistent complaints of shoulder pain. Tr. 367, 370, 381, 387, 400, 409. Thus, 16 after an independent review of the record, the court finds the opinion of Dr. 17 Haynes does not appear to be consistent with evidence in the record, and therefore 18 does not, standing alone, constitute substantial evidence in support of the ALJ’s 19 medical improvement finding. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 20 1 Finally, the medical opinion evidence relied on by the ALJ in finding 2 medical improvement as of January 1, 2012 are the exact same records the ALJ 3 referenced in support of his finding that Plaintiff was disabled from November 8, 4 2010 through December 31, 2011. Tr. 29, 33. The record contains no medical 5 evidence of any kind from the period of several months before or after January 1, 6 2012, and thus cannot confirm any improvement in Plaintiff’s symptoms as of that 7 date. For all of these reasons, the court concludes the ALJ failed to meet his burden 8 of producing evidence sufficient to rebut the presumption of continuing disability 9 as of January 1, 2012. 10 Moreover, even assuming arguendo that the ALJ did not err in finding 11 medical improvement as of January 1, 2012, Plaintiff also persuasively argues that 12 the ALJ erred in his consideration of the medical opinions, including those of Dr. 13 Ugorji and Dr. Haynes for largely the same reasons outlined above in this section. 14 ECF No. 17 at 13-14. Defendant argues that any error in the ALJ’s consideration 15 of Dr. Haynes’ opinion is harmless because the RFC includes all of his assessed 16 limitations. ECF No. 18 at 14-15. However, the RFC’s vague limitation that 17 Plaintiff should “avoid overhead work,” arguably does not account fully for Dr. 18 Haynes’ assessment that Plaintiff could not lift his right arm over his head, 19 particularly when compared with the RFC assessed during the closed period of 20 disability that included a limitation of “no use of the right upper extremity.” Tr. 28, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 21 1 31, 58-59. Plaintiff also correctly argues that Nurse Bichler’s opinion cited by the 2 ALJ as “consistent” with Dr. Haynes’ testimony that Plaintiff could perform “light 3 work,” was assessed previous to either of Plaintiff’s surgery and therefore cannot 4 be “consistent” because it does not reflect any postural limitations work above 5 shoulder level. Tr. 33, 277. 6 Finally, the ALJ gave “weight” to the only mental health opinion in the 7 record, assessed by Dr. John Arnold, and found it was “not inconsistent” with the 8 assessed RFC “that the claimant would have difficulty with social interaction but 9 was still capable of performing simple instructions.” Tr. 33. As noted by 10 Defendant, Dr. Arnold did opine in the narrative portion of his report that Plaintiff 11 could perform simple tasks, should work away from others, and could maintain 12 concentration for “at least” short periods of time. Tr. 359. This portion of the 13 opinion appears to be consistent with the assessed RFC. Tr. 31. However, Plaintiff 14 argues that Dr. Arnold also found moderate limitations in Plaintiff’s ability to 15 maintain appropriate behavior in a work setting (Tr. 358), which the ALJ failed to 16 incorporate into the assessed RFC. ECF No. 17 at 14. Defendant responds that the 17 ALJ properly discredited Dr. Arnold’s opinion because he “did not provide a 18 significant basis for his opinion, such as testing or review of any records.” Tr. 33; 19 ECF No. 18 at 16-18. It is true that “[a]n ALJ need not accept the opinion of a 20 doctor if that opinion is brief, conclusory, and inadequately supported by clinical ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 22 1 findings.” Thomas, 278 F.3d at 957. However, despite generally noting the lack of 2 “significant basis” for his opinion, the ALJ went on to assign “weight” to Dr. 3 Arnold’s entire opinion without qualification. Tr. 33. Therefore, the ALJ erred by 4 failing to provide clear and convincing reasons for discounting the parts of his 5 opinion not included in the RFC finding. Bayliss v. Barnhart, 427 F.3d 1211, 1216 6 (9th Cir. 2005) (if a treating or examining physician's opinion is uncontradicted, 7 the ALJ may reject it only by offering “clear and convincing reasons that are 8 supported by substantial evidence”). Moreover, the VE testified that the omitted 9 moderate limitation on Plaintiff’s ability to maintain appropriate behavior in a 10 work setting “would be expected to result in the worker losing the job.” Tr. 90. 11 Thus, the error is not harmless because it is not “inconsequential to the [ALJ’s] 12 ultimate nondisability determination.” Molina, 674 F.3d at 1115. 13 For all of these reasons, remand is required to reconsider the medical 14 evidence and further develop the record as to whether Plaintiff remained disabled 15 after December 31, 2011. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 16 2001) (“[a]n ALJ’s duty to develop the record is triggered only when there is 17 ambiguous evidence or when the record is inadequate to allow for proper 18 evaluation of the evidence”). 19 CONCLUSION 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 23 1 The ALJ’s decision was not supported by substantial evidence and free of 2 legal error. Remand is appropriate when, like here, a decision does not adequately 3 explain how a conclusion was reached, “[a]nd that is so even if [the ALJ] can offer 4 proper post hoc explanations for such unexplained conclusions,” for “the 5 Commissioner's decision must stand or fall with the reasons set forth in the ALJ's 6 decision, as adopted by the Appeals Council.” Barbato v. Comm'r of Soc. Sec., 923 7 F.Supp. 1273, 1276 n. 2 (C.D.Cal.1996) (citations omitted). On remand, the ALJ 8 should reconsider his credibility analysis. Additionally, the ALJ must reconsider 9 the medical opinion evidence, and further develop the record as to whether medical 10 improvement occurred in the Plaintiff’s condition after December 31, 2011. 11 ACCORDINGLY, IT IS HEREBY ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is GRANTED. 13 The matter is remanded to the Commissioner for additional proceedings 14 pursuant to sentence four 42 U.S.C. § 405(g). 15 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 16 The District Court Executive is hereby directed to enter this Order and 17 provide copies to counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 18 19 20 DATED this 7th day of January, 2015. s /Fred Van Sickle Fred Van Sickle Senior United States District Judge ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 24

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