Jesus F. Guerrero Cuevas v. Nancy A. Berryhill, No. 2:2017cv08187 - Document 27 (C.D. Cal. 2019)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See document for details.) (sbou)
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Jesus F. Guerrero Cuevas v. Nancy A. Berryhill Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESUS F.G.C.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. ) Case No. CV 17-8187-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying his applications for disability income benefits (“DIB”) 20 and supplemental security income benefits (“SSI”). 21 consented to the jurisdiction of the undersigned under 28 U.S.C. 22 § 636(c). 23 Stipulation, filed July 30, 2018, which the Court has taken under 24 submission without oral argument. 25 the Commissioner’s decision is reversed and this action is The parties The matter is before the Court on the parties’ Joint For the reasons stated below, 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 remanded for further proceedings. 2 II. BACKGROUND 3 Plaintiff was born in 1976. (Administrative Record (“AR”) 4 34, 183, 187.) 5 prefers communicating in Spanish. 6 completed high school and possibly some college in Mexico.2 7 209.) 8 “manager” of a sports bar. 9 Though he can “read and understand” English, he (AR 207.) He apparently (AR He testified that he last worked as a “supervisor” or (AR 45.) On December 3, 2013, Plaintiff applied for DIB, alleging 10 that he had been unable to work since August 17, 2013, because of 11 left-tibia fracture, “[d]iabetes,” hypertension, “[c]holesterol,” 12 and “[h]eart [c]ondition.” 13 December 12, 2013, he applied for SSI, alleging the same. 14 187-92, 208; see also AR 21.) 15 AR 76-106), and he requested a hearing before an Administrative 16 Law Judge (AR 111-12). 17 which Plaintiff, who was represented by counsel and aided by a 18 Spanish-language interpreter, testified, as did a vocational 19 expert. 20 worker who had worked with Plaintiff, also testified. 21 66.) 22 Plaintiff not disabled. 23 Council review (AR 180-82, 262-64; see also AR 9-13), which was (AR 183-86, 208; see also AR 21.) On (AR His applications were denied (see A hearing was held on April 21, 2016, at (See AR 42-75.) Leslie Saavedra, an unlicensed social (AR 62- In a written decision issued June 2, 2016, the ALJ found (AR 21-36.) Plaintiff sought Appeals 24 25 26 27 28 2 Plaintiff seemed confused during the hearing about the level of schooling he had completed in American terms but clearly stated that he did not go to college. (See AR 47-48.) He marked that he had finished four years of college in his disability report (see AR 209), however, and told the consulting psychiatrist that he completed 12th grade and attended the University of Mexico (AR 444). 2 1 denied on September 27, 2017 (AR 1-8). 2 III. STANDARD OF REVIEW 3 This action followed. Under 42 U.S.C. § 405(g), a district court may review the 4 Commissioner’s decision to deny benefits. The ALJ’s findings and 5 decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 8 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 means such evidence as a reasonable person might accept as Substantial evidence 10 adequate to support a conclusion. 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 12 is more than a scintilla but less than a preponderance. 13 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 14 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 15 substantial evidence supports a finding, the reviewing court 16 “must review the administrative record as a whole, weighing both 17 the evidence that supports and the evidence that detracts from 18 the Commissioner’s conclusion.” 19 720 (9th Cir. 1998). 20 either affirming or reversing,” the reviewing court “may not 21 substitute its judgment” for the Commissioner’s. 22 IV. 23 Richardson, 402 U.S. at 401; It To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 24 Security benefits if they are unable to engage in any substantial 25 gainful activity owing to a physical or mental impairment that is 26 expected to result in death or has lasted, or is expected to 27 last, for a continuous period of at least 12 months. 28 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 42 U.S.C. 1 1992). 2 A. The Five-Step Evaluation Process 3 The ALJ follows a five-step evaluation process to assess 4 whether a claimant is disabled. 5 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 6 1995) (as amended Apr. 9, 1996). 7 Commissioner must determine whether the claimant is currently 8 engaged in substantial gainful activity; if so, the claimant is 9 not disabled and the claim must be denied. 10 11 20 C.F.R. §§ 404.1520(a)(4), In the first step, the §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful 12 activity, the second step requires the Commissioner to determine 13 whether the claimant has a “severe” impairment or combination of 14 impairments significantly limiting his ability to do basic work 15 activities; if not, the claimant is not disabled and his claim 16 must be denied. 17 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 18 impairments, the third step requires the Commissioner to 19 determine whether the impairment or combination of impairments 20 meets or equals an impairment in the Listing of Impairments set 21 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 22 disability is conclusively presumed. 23 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 24 If the claimant’s impairment or combination of impairments 25 does not meet or equal an impairment in the Listing, the fourth 26 step requires the Commissioner to determine whether the claimant 27 28 4 1 has sufficient residual functional capacity (“RFC”)3 to perform 2 his past work; if so, he is not disabled and the claim must be 3 denied. 4 has the burden of proving he is unable to perform past relevant 5 work. 6 burden, a prima facie case of disability is established. 7 that happens or if the claimant has no past relevant work, the 8 Commissioner then bears the burden of establishing that the 9 claimant is not disabled because he can perform other substantial §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If 10 gainful work available in the national economy. 11 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 12 That determination comprises the fifth and final step in the 13 sequential analysis. 14 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 15 B. The ALJ’s Application of the Five-Step Process 16 At step one, the ALJ found that Plaintiff had not engaged in 17 substantial gainful activity since August 17, 2013, the alleged 18 onset date. 19 had severe impairments of “history of fracture to left knee, 20 status post open reduction internal fixation; history of left leg 21 fracture; diabetes mellitus; left wrist strain; left elbow 22 sprain; left ankle sprain; headaches; lumbar strain; 23 hypertension; mood disorder; and anxiety disorder.” 24 step three, he determined that Plaintiff’s impairments did not (AR 23.) At step two, he concluded that Plaintiff (Id.) At 25 3 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 meet or equal a listing. (AR 24-26.) At step four, he found 2 that Plaintiff had the RFC to perform light work4 with the 3 following limitations: 4 [Plaintiff can] stand[] or walk[] for two hours with use 5 of assistive device for prolonged ambulation; perform 6 occasional 7 scaffolds, 8 dangerous machinery; no repetitive or forceful pushing, 9 pulling, postural or activities, ropes; gripping, avoid grasping, but unprotected squeezing, no ladders, heights holding or and 10 torqueing with the left upper extremity (right hand 11 dominant); . . . perform non-complex routine tasks, but 12 no tasks requiring hypervigilance, responsibility for the 13 safety of others, or significant public interaction. 14 (AR 26.) 15 relevant work. 16 given Plaintiff’s age, education, work experience, and RFC, he 17 could perform three “representative” jobs in the national 18 economy. 19 disabled. The ALJ found that Plaintiff could not do any past (AR 33.) (AR 34-35.) But at step five, he determined that Thus, the ALJ found Plaintiff not (AR 35-36.) 20 21 22 4 23 24 25 26 27 28 “Light work” involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” §§ 404.1567(b), 416.967(b). The regulations further specify that “[e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” Id. A person capable of light work is also capable of “sedentary work,” which involves lifting “no more than 10 pounds at a time and occasionally lifting or carrying [small articles]” and may include occasional walking or standing. §§ 404.1567(a)-(b), 416.967(a)-(b). 6 1 V. 2 DISCUSSION5 Plaintiff argues that the ALJ erred by discounting his 3 subjective pain statements, rejecting the opinions of 4 psychiatrist Pedro Florescio and social worker Saavedra, and 5 ignoring his alleged depression at step two. 6 3.) 7 improper evaluation of Plaintiff’s subjective statements. 8 Accordingly, the Court does not reach the other issues. 9 As discussed below, remand is necessary based on the ALJ’s A. 10 11 (See J. Stip. at 2- The ALJ Did Not Properly Evaluate Plaintiff’s Subjective Symptom Testimony Plaintiff claims that the ALJ “fail[ed] to provide specific, 12 clear or convincing reasons for rejecting [his] subjective 13 complaints.” 14 of the at most two reasons the ALJ gave for partially discounting 15 Plaintiff’s subjective symptom statements and testimony was not 16 supported by substantial evidence and the other was insufficient 17 by itself, remand is necessary. (J. Stip. at 11.) As explained below, because one 18 19 20 21 22 23 24 25 26 27 28 5 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 262-64; J. Stip. at 2-6, 9-11, 14-15); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings); Davidson v. Comm’r of Soc. Sec., No. 2:16-cv-00102, 2018 WL 4680327 (M.D. Tenn. Sept. 28, 2018) (same). 7 1 2 1. Applicable law An ALJ’s assessment of a claimant’s allegations concerning 3 the severity of his symptoms is entitled to “great weight.” 4 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 5 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 6 1985) (as amended Feb. 24, 1986). 7 believe every allegation of disabling pain, or else disability 8 benefits would be available for the asking, a result plainly 9 contrary to 42 U.S.C. § 423(d)(5)(A).” “[T]he ALJ is not required to Molina v. Astrue, 674 10 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 11 597, 603 (9th Cir. 1989)). 12 In evaluating a claimant’s subjective symptom testimony, the 13 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 14 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 15 2016).6 “First, the ALJ must determine whether the claimant has 16 17 18 19 20 21 22 6 The Commissioner applies SSR 16-3p, which went into effect a few months before the ALJ issued his decision, on June 2, 2016, to all “determinations and decisions on or after March 28, 2016.” Soc. Sec. Admin., Policy Interpretation Ruling, SSR 16-3p n.27, https://www.ssa.gov/OPHome/rulings/di/01/ SSR2016-03-di-01.html (last visited Jan. 16, 2019). Though the new ruling eliminates the term “credibility” and focuses on “consistency” instead, Plaintiff refers to his “credibility” (J. Stip. at 2), and much of the relevant case law uses that language too (see, e.g., id. at 10 (discussing applicable case law)). But as the Ninth Circuit has clarified, SSR 16-3p 23 24 25 26 27 makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to “evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. 28 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as 8 1 presented objective medical evidence of an underlying impairment 2 [that] could reasonably be expected to produce the pain or other 3 symptoms alleged.” 4 objective medical evidence exists, the ALJ may not reject a 5 claimant’s testimony “simply because there is no showing that the 6 impairment can reasonably produce the degree of symptom alleged.” 7 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 8 original), superseded in part by statute on other grounds, 9 §§ 404.1529, 416.929. 10 Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discount 11 the claimant’s subjective symptom testimony only if he makes 12 specific findings that support the conclusion. 13 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 14 affirmative evidence of malingering, the ALJ must provide a 15 “clear and convincing” reason for rejecting the claimant’s 16 testimony. 17 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 18 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 19 Cir. 2014). 20 symptoms is supported by substantial evidence in the record, the 21 reviewing court “may not engage in second-guessing.” 22 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. If the ALJ’s evaluation of a plaintiff’s alleged Thomas v. 23 Contradiction with evidence in the medical record is a 24 “sufficient basis” for rejecting a claimant’s subjective symptom 25 testimony. 26 1161 (9th Cir. 2008); see also Morgan v. Comm’r of Soc. Sec. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 27 28 amended) (alterations in original) (quoting SSR 16-3p). 9 1 Admin., 169 F.3d 595, 600 (9th Cir. 1999) (upholding “conflict 2 between [plaintiff’s] testimony of subjective complaints and the 3 objective medical evidence in the record” as “specific and 4 substantial” reason undermining statements). 5 the sole basis for discounting pain testimony.” 6 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. 7 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing then-current 8 version of § 404.1529(c)(2)). 9 2. 10 11 But it “cannot form Burch v. Relevant background a. Plaintiff’s statements In his December 2013 SSI application, Plaintiff apparently 12 indicated that he did “not need help in personal care, hygiene or 13 upkeep of a home.” 14 consulting examining psychiatrist that he was able to “do 15 cooking, shopping, and housekeeping.” 16 August 2014 appeal of the initial finding of nondisability, he 17 wrote that he “require[d] assistance to bathe/dress and use 18 restroom,” and “someone ha[d] to cook for [him] and buy [his] 19 groceries/necessities.” 20 (AR 188.) And he purportedly reported to the (AR 445.) But in his (AR 243.) Similarly, in his June 4, 2014 function report, Plaintiff 21 stated that he took care of his teenaged son by “mak[ing] sure he 22 [went] to school, and ha[d] his meals,” but he clarified that he 23 could not “do it physically.” 24 testifying that as of April 21, 2016 hearing date, his son was 25 18).) 26 his meals, and helped him with laundry, groceries, and school 27 assignments. 28 dressing, bathing, sitting on the toilet, and doing laundry. (AR 231; see also AR 54 (Plaintiff Rather, his roommate actually took the son to school, made (AR 231.) Plaintiff required help with his own 10 1 (Id.) He couldn’t “ben[d]” or “walk” and had “difficulty moving 2 [his] left arm.” 3 grooming because he lacked motivation. 4 needed help remembering to take his medication. 5 not do any cooking and was “not able to do any[]” house or yard 6 work. 7 accessible transportation. 8 three times a week, saw doctors, and had visits from his mother. 9 (Id.; see also AR 234.) (Id.) (Id.) The roommate helped him with personal (AR 232.) Plaintiff also (Id.) He did For outings, his friend took him or he used (AR 233.) He went to church two or He could not go out alone because he 10 needed “help moving, walking down and upstairs [sic].” 11 He could not drive or shop, but he could handle his financial 12 affairs. 13 since he had begun receiving “Cal Fresh,” but he went with his 14 son, a caregiver, or a friend. 15 with his family, friends, and neighbors but “d[id]n’t see friends 16 only family” and “g[o]t sad and uncomfortable seeing others.” 17 (AR 235.) (Id.) (AR 233.) He was starting to “do groceries” once a week (AR 234.) He got along “well” 18 Plaintiff marked that he had trouble “[l]ifting, 19 [s]quatting, [b]ending, [s]tanding, [r]eaching, [w]alking, 20 [s]itting, [k]neeling, [s]tair-[c]limbing, [s]eeing, [m]emory, 21 [c]ompleting [t]asks, [c]oncentration, [u]nderstanding, 22 [f]ollowing [i]nstructions, [u]sing [h]ands [specifying “left 23 hand”],7 [and] [g]etting [a]long with [o]thers,” and he wrote 24 that he “g[ot] ‘depressed.’” 25 about how well he followed spoken directions and got along with 26 authority figures, he wrote, “I am OK.” (Id.) In response to questions (AR 235-36.) 27 28 7 Plaintiff is right-handed. 11 (AR 235.) But he 1 didn’t handle stress well; he was “starting to get anxious mood 2 every day” and “worried about everything.” 3 boxes indicating that he used crutches, a walker, a wheelchair, 4 and a “[b]race/[s]plint,” all of which “were [recommended] by 5 doctor in USC” after he was injured in August 2013. 6 used the aids “every day, all times.” 7 (AR 236.) He checked (Id.) He (Id.) At the April 2016 hearing, Plaintiff testified that his knee 8 did “not bend” and that he had “weakness.” (AR 49.) The 9 physical therapy was helping “[a] little,” but for “long periods” 10 he still used a wheelchair and a “crutch” or “walker” otherwise. 11 (AR 50-52.) 12 two times a week,” and “the doctor’s.” 13 that despite “[l]ots of [mental health] treatment,” he still felt 14 “sad,” had thoughts of suicide “[a]t times,” slept “very little,” 15 and cried “[a]ll the time.” 16 with friends, and he apparently went to a “private place” for 17 church prayers, not a mass service. 18 his son, with whom he lived, helped him “a lot” by giving him 19 “massages, sometimes therapy”; taking him to doctors; checking 20 his blood pressure and sugar; and reminding him to take his 21 medicine. 22 did his laundry. 23 to the store and spent most of his time “sitting” at home. He left his home only to go to “therapy,”8 “church (AR 54.) (AR 52-53.) (AR 51.) He indicated He did not socialize (AR 53-54.) His friend and They also fed him, changed his diapers,9 and (AR 54, 58.) He testified that he “never” went (AR 24 8 25 26 27 28 At some point, Saavedra and other clinic providers began sometimes seeing Plaintiff in his home rather than at the clinic. (See, e.g., AR 550, 618, 667.) 9 Plaintiff was apparently incontinent, although the cause was unknown. (See AR 30; cf. AR 560 (Plaintiff reporting to Saavedra that he urinated on himself because he was afraid he’d fall while using restroom).) 12 1 55.) Sometimes, his mother visited him. 2 to anxiety and flashbacks and suggested that because he “always 3 ha[d] pain,” he always thought about his problems. 4 b. 5 6 (AR 57.) He testified (AR 55-56.) The ALJ’s findings relating to Plaintiff’s subjective symptom statements The ALJ found that Plaintiff’s impairments had “more than a 7 minimal effect on [his] ability to function” (AR 24), but they 8 “could not reasonably be expected to cause the alleged symptoms” 9 (AR 28). Further, his “statements concerning the intensity, 10 persistence and limiting effects of these symptoms [were] not 11 entirely consistent with the medical evidence and other evidence 12 in the record.” 13 for discounting Plaintiff’s statements concerning his symptoms, 14 their inconsistency with the objective medical evidence, but he 15 also observed in that same general discussion that some of 16 Plaintiff’s statements were inconsistent with his activities of 17 daily living. 18 (Id.) The ALJ expressly stated only one reason (See id.; see also generally AR 26-33.) In analyzing Plaintiff’s statements and testimony, the ALJ 19 recounted them and the evidence allegedly undermining them at 20 length. 21 he found that Plaintiff “and his clinical social worker endorse 22 debilitating symptoms that are not supported by objective medical 23 evidence.” 24 that [Plaintiff] is essentially bedridden and unable to lift his 25 arms to reach for objects . . . [but] he is able to go to the 26 grocery store, attend church weekly, and go to medical and 27 psychiatric appointments.” 28 accidents but found his reported “level of functioning” “not (See AR 27-31.) (AR 28.) As to Plaintiff’s physical limitations, For example, he wrote, “[t]hey indicate (Id.) 13 He noted Plaintiff’s two 1 reasonable considering that he has healed.” 2 “[d]espite many subjective complaints of pain at earlier pain 3 management sessions,” his “actual functioning ha[d] significantly 4 improved.” 5 notes . . . indicate that [Plaintiff] has met his goal of 6 increasing his range of motion, increasing his lower extremity 7 strength, standing and walking for more than 30 minutes with 8 minimal pain and use of an assistive device, and ability to 9 transfer positions.” 10 (AR 29.) (Id.) And He found that “[r]ecent physical therapy (Id.) As to Plaintiff’s mental limitations, the ALJ found that 11 “[d]espite extreme subjective complaints of depression, [he] has 12 never been hospitalized for mental health reasons.” 13 noted that Plaintiff “continues to be able to socialize with 14 those close to him and attend church regularly.” 15 also “able to go to the grocery store in the evening and attend 16 his doctor’s appointments.” 3. 17 18 (AR 31.) (Id.) He He was (Id.) Analysis Plaintiff may be right that the ALJ provided only one reason 19 for discounting his subjective symptom statements: their alleged 20 inconsistency with the objective medical evidence. 21 at 11.) 22 (See generally AR 28.) 23 alone. 24 extrapolates another reason from the ALJ’s discussion — that 25 Plaintiff’s daily activities were inconsistent with his alleged 26 symptoms — remand is still warranted, as explained below. (See J. Stip. That is certainly the only one he expressly articulated. If so, remand is necessary on that basis See Burch, 400 F.3d at 681. 27 28 14 But even if the Court 1 a. 2 Activities of daily living The ALJ noted that some of Plaintiff’s activities of daily 3 living were inconsistent with the alleged degree of his symptoms, 4 at least as to his mental health.10 5 discount a claimant’s subjective symptom testimony when it is 6 inconsistent with his daily activities. 7 1113. 8 difficulty functioning, they may be grounds for discrediting the 9 claimant’s testimony to the extent that they contradict claims of 10 11 (See AR 31.) An ALJ may See Molina, 674 F.3d at “Even where those [daily] activities suggest some a totally debilitating impairment.” Id. On several occasions, the ALJ’s decision did not accurately 12 or completely reflect the record concerning Plaintiff’s 13 activities. 14 to . . . attend church regularly,” “go to the grocery store in 15 the evening,” and “attend his doctor’s appointments.” 16 But the record does not show that Plaintiff was capable of doing 17 any of those things (or any other activities of daily living) 18 without significant help from a caregiver, friend, or adult son. 19 (See, e.g., AR 54-55, 231-35.) 20 activities were apparently limited. 21 testifying that he mostly sat at home while his friend and son 22 cooked for him, did his laundry, drove him to appointments and 23 church, changed his diapers, and reminded him to take 24 medications)); see also Smolen, 80 F.3d at 1284 n.7 (“The Social 25 Security Act does not require that claimants be utterly 26 incapacitated to be eligible for benefits, and many home For example, the ALJ wrote that Plaintiff was “able (AR 31.) Even with their help, his (See AR 54-55 (Plaintiff 27 28 10 At step three, the ALJ found that Plaintiff was moderately limited in his activities of daily living. (AR 25.) 15 1 activities may not be easily transferable to a work environment 2 . . . .”). 3 in the traditional sense, but rather went to a “private place” 4 where he could “pray individually.” 5 Moreover, Plaintiff apparently did not attend church (AR 53-54.) Likewise, the ALJ’s representation that Plaintiff “takes 6 care of his son, including preparing him for school, overseeing 7 his meals, and seeing to his other needs” leaves out Plaintiff’s 8 critical qualification that he did none of those things 9 “physically”; rather, he directed his roommate, who was the one 10 to actually care for the son. 11 the hearing Plaintiff’s son was an adult, and he appeared to take 12 care of his father, not the other way around. 13 (AR 231.) Further, by the time of (See AR 54.) And the same recent physical-therapy report the ALJ cited as 14 evidence that Plaintiff had met “his goal” in various areas (see 15 AR 29 (citing AR 962-65)) also states that he had “[s]evere 16 [l]imitation” in walking and “[s]tairs” (AR 962), and some of his 17 limitations had worsened or failed to improve even after four 18 months of physical therapy (see, e.g., AR 963 (showing left-knee 19 range-of-motion extension decreasing), 964 (showing hip and spine 20 range-of-motion measurements remaining stagnant)). 21 therapist noted that he had “not made as much improvement as 22 expected” and that what improvement he had made generally did not 23 last beyond “the end of the visit.” 24 Plaintiff had indeed met some goals, as the ALJ noted (see AR 25 29), they were almost all short- or midterm goals, a fact the ALJ 26 neglected to mention; he had not met any of his “[l]ong [t]erm” 27 goals nearly a year after his second accident (AR 965). 28 (AR 964.) The physical And although Although the ALJ may have believed Plaintiff capable of 16 1 doing more activities based on the objective medical evidence, 2 the record consistently showed that he was unable to care for 3 himself or do regular daily activities in a meaningful way. 4 (See, e.g., AR 54-55, 231-35.) 5 primarily on the consulting psychiatrist’s note that Plaintiff 6 “reported being able to cook, shop, and perform housekeeping” for 7 support. 8 communicated with Plaintiff through an interpreter (AR 442), the 9 statement’s inconsistency with the rest of the record, and the 10 ALJ’s own discounting of the doctor’s opinion (AR 32-33), that 11 note is not substantial evidence of Plaintiff’s daily activities. 12 Also, the doctor saw Plaintiff only once; other treating 13 professionals with much longer treatment histories consistently 14 recorded notes indicating that Plaintiff was not able to do those 15 things on his own or, as to some of them, even with help (see, 16 e.g., AR 580, 667), and Plaintiff repeatedly wrote and testified 17 that he was unable to care for himself or engage in daily 18 activities (see, e.g., AR 54-55, 231-35). 19 The ALJ appears to have relied (AR 30 (citing AR 445).) But given that the doctor Therefore, to the extent the ALJ relied on Plaintiff’s 20 activities of daily living as a reason for discounting his 21 subjective symptom testimony, he erred in doing so. 22 v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017). b. 23 24 See Diedrich Inconsistency with medical evidence The only potentially valid reason the ALJ gave for 25 discounting Plaintiff’s subjective symptom statements and 26 testimony was their alleged inconsistency with the medical 27 record. 28 claimant’s subjective complaints based solely on a lack of (See generally AR 28.) But “an ALJ may not reject a 17 1 medical evidence to fully corroborate the alleged severity of 2 pain.” 3 (“While an ALJ may find testimony not credible in part or in 4 whole, he or she may not disregard it solely because it is not 5 substantiated affirmatively by objective medical evidence.”); 6 Gama v. Colvin, 611 F. App’x 445, 446 (9th Cir. 2015) (when one 7 reason ALJ gave for discounting plaintiff’s credibility was 8 erroneous and “only remaining reason . . . was a lack of 9 objective medical evidence,” “error was not harmless”). Burch, 400 F.3d at 680; see also Robbins, 466 F.3d at 883 Thus, 10 Plaintiff is entitled to remand on this ground regardless of 11 whether the ALJ was correct that the severity of Plaintiff’s pain 12 allegations was not substantially supported by the objective 13 evidence. 14 B. Remand for Further Proceedings Is Appropriate 15 When an ALJ errs, as here, the Court “ordinarily must remand 16 for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 17 (9th Cir. 2017) (as amended Jan. 25, 2018); see also Harman v. 18 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). 19 Court has discretion to do so or to award benefits under the 20 “credit as true” rule. 21 omitted). 22 and prophylactic exception to the ordinary remand rule[.]” 23 The “decision of whether to remand for further proceedings turns 24 upon the likely utility of such proceedings,” Harman, 211 F.3d at 25 1179, and when an “ALJ makes a legal error, but the record is 26 uncertain and ambiguous, the proper approach is to remand the 27 case to the agency,” Leon, 880 F.3d at 1045 (citing Treichler, 28 775 F.3d at 1105). The Leon, 880 F.3d at 1045 (citation “[A] direct award of benefits was intended as a rare 18 Id. 1 Here, further administrative proceedings would serve the 2 useful purpose of allowing the ALJ to give proper consideration 3 to Plaintiff’s subjective symptom testimony. 4 Colvin, No. CV 15-01927-RAO, 2016 WL 3902307, at *7 (C.D. Cal. 5 July 18, 2016) (remand “rather than an award of benefits” 6 appropriate when only valid reason ALJ gave for discounting 7 plaintiff’s subjective pain testimony was “lack of supporting 8 objective evidence”). 9 subjective symptoms on remand, he can then provide an adequate See Arredondo v. If the ALJ chooses to discount Plaintiff’s 10 discussion of the reasons why. See Payan v. Colvin, 672 F. App’x 11 732, 733 (9th Cir. 2016). 12 physical functioning in some areas, as noted by the ALJ (see AR 13 29); the documented connection between his physical and emotional 14 conditions (see, e.g., AR 573, 592); and his varying abilities as 15 he healed from two separate accidents separated by two years, the 16 Court has serious doubt as to whether Plaintiff was disabled 17 during any or all of the relevant period. 18 remand is appropriate. 19 1021 (9th Cir. 2014) (recognizing flexibility to remand for 20 further proceedings when “record as a whole creates serious doubt 21 as to whether the [plaintiff] is, in fact, disabled”). Because of Plaintiff’s recent improved For this reason, too, See Garrison v. Colvin, 759 F.3d 995, 22 Because the contested medical opinions were based to a 23 large degree on Plaintiff’s subjective symptom statements (see J. 24 Stip. at 7, 8; see also AR 31 (ALJ noting same)) and the ALJ 25 improperly assessed those statements, he should on remand 26 reconsider the weight to give those opinions. 27 should clarify whether he finds Plaintiff’s alleged depression to 28 be a severe impairment and, if not, explain why not. 19 Similarly, he 1 Accordingly, the Court does not reach those issues. 2 Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand 3 the case to the ALJ for the reasons stated, we decline to reach 4 [plaintiff’s] alternative ground for remand.”) 5 VI. 6 See Hiler v. CONCLUSION Consistent with the foregoing and under sentence four of 42 7 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 8 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 9 request for remand, and REMANDING this action for further 10 proceedings consistent with this memorandum decision. 11 12 DATED: January 18, 2019 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 20
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