Alberto Benjamin Sibrian v. Nancy A. Berryhill, No. 5:2018cv01090 - Document 27 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Alberto Benjamin Sibrian 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 12 13 14 15 16 17 ALBERTO BENJAMIN SIBRIAN, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Deputy ) Commissioner for Operations, ) Performing duties and functions not) reserved to the Commissioner of ) Social Security, ) ) Defendant. ) ) NO. ED CV 18-1090-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on May 23, 2018, seeking review of 27 the Commissioner’s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on June 17, 2018. Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on November 27, 2018. 2 Defendant filed a motion for summary judgment on December 28, 2018. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; “Order,” filed May 25, 2018. 5 BACKGROUND 6 7 8 9 Plaintiff, a former forklift operator and heavy material handler, asserts disability since August 15, 2008, based on alleged corneal 10 ulcers of the eyes, obesity, hypertension and depression 11 (Administrative Record (“A.R.”) 46, 51-52, 69, 177-83, 205-06). 12 Administrative Law Judge (“ALJ”) reviewed the record and heard 13 testimony from Plaintiff and a vocational expert (A.R. 15-29, 37-81). An 14 15 The ALJ found that Plaintiff suffers from severe obesity, 16 uncontrolled essential hypertension, and loss of visual acuity. See 17 A.R. 17-19 (finding nonsevere Plaintiff’s alleged depression). 18 ALJ found that Plaintiff retains the residual functional capacity for 19 light work, limited to: (1) sitting for six hours in an eight-hour 20 day, and standing and/or walking two hours in an eight-hour day for 30 21 minutes at a time; (2) occasionally climbing ramps and stairs and 22 balancing; (3) no climbing ladders, ropes or scaffolds, or stooping, 23 kneeling, crouching or crawling; (4) no work requiring fine vision 24 (watch making or repair), no reading of fine print and no harsh 25 lighting; and (5) no work at unprotected heights or around moving 26 mechanical parts. 27 state agency physicians’ opinions at A.R. 88-90, 100-103, that 28 Plaintiff is capable of light work with some postural limitations). The See A.R. 20-27 (giving “substantial weight” to 2 1 The ALJ concluded that Plaintiff was capable of working as a charge 2 account clerk, bench hand and addressing clerk (A.R. 28-29) 3 (purportedly adopting vocational expert testimony at A.R. 69-73).1 4 that basis, the ALJ found Plaintiff not disabled (id.). On 5 6 In determining Plaintiff’s residual functional capacity, the ALJ 7 deemed Plaintiff’s subjective complaints “not entirely consistent with 8 the medical evidence and other evidence in the record” (A.R. 21). 9 detailed below, Plaintiff had testified that his impairments cause 10 As limitations of allegedly disabling severity (A.R. 43-68). 11 12 The Appeals Council denied review (A.R. 1-3). 13 STANDARD OF REVIEW 14 15 16 Under 42 U.S.C. section 405(g), this Court reviews the 17 Administration’s decision to determine if: (1) the Administration’s 18 findings are supported by substantial evidence; and (2) the 19 Administration used correct legal standards. 20 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 21 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, See Carmickle v. 22 23 24 25 26 27 28 1 The hypothetical question posed by the ALJ to the vocational expert did not include the preclusion from stooping, kneeling, crouching or crawling that the ALJ found to exist. See A.R. 69-72 (ALJ asking about a hypothetical person who could occasionally stoop, kneel, crouch and crawl). This omission appears to be immaterial, given the Dictionary of Occupational Titles (“DOT”) information for the jobs the vocational expert identified. The DOT states that stooping, kneeling, crouching and crawling are “not present” in these jobs. See DOT 205.367014, 700.687-062, 209.587-010. 3 1 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion.” 4 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 5 454 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 7 If the evidence can support either outcome, the court may 8 not substitute its judgment for that of the ALJ. 9 Commissioner’s decision cannot be affirmed simply by 10 isolating a specific quantum of supporting evidence. 11 Rather, a court must consider the record as a whole, 12 weighing both evidence that supports and evidence that 13 detracts from the [administrative] conclusion. But the 14 15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 16 quotations omitted). 17 DISCUSSION 18 19 Plaintiff contends, inter alia, that the ALJ erred in evaluating 20 21 Plaintiff’s statements and testimony concerning the alleged severity 22 of his limitations. 23 discussed below, the Court agrees. See Plaintiff’s Motion, pp. 5-9. For the reasons 24 25 I. Summary of the Medical Record 26 27 28 The available medical record is relatively sparse, and much of the record consists of treatment notes regarding Plaintiff’s 4 1 eye/vision problems (A.R. 269-71, 278-85, 289, 308, 315-18, 372-73, 2 378-79). 3 May of 2014, Plaintiff reportedly had mild lower extremity non-pitting 4 edema on examination (A.R. 272). 5 blood pressure was checked per his doctor’s orders, Plaintiff 6 reportedly denied symptoms associated with high blood pressure (e.g. 7 headache, vision changes, chest pain and confusion) (A.R. 290). 8 November of 2014, Plaintiff reportedly had bilateral pitting edema on 9 examination (A.R. 321). Other records reflect relatively benign examinations. In In August of 2014, when Plaintiff’s In 10 In April of 2015, Plaintiff presented for follow up for a wound 11 12 on his buttocks, and he reported that he had lost 50 pounds since 13 January by going to the gym most days and trying to diet (A.R. 326- 14 27). 15 A.R. 323 (January, 2015 note reporting Plaintiff’s weight at 547 16 pounds)). 17 problems, including peripheral edema (A.R. 326-27). Plaintiff then reportedly weighed 514 pounds (A.R. 326; see also Plaintiff reportedly denied pain or any cardiovascular 18 In May of 2015, Plaintiff reported foot pain at 3 on a scale of 1 19 20 to 10 (A.R. 333). Plaintiff then reportedly weighed 497 pounds (A.R. 21 333). 22 loss of grip strength in the right hand dating back approximately one 23 year, which assertedly usually happened in the mornings and resolved 24 during the day (A.R. 336-37). 25 with ambulation and back pain at a 7 on a scale of 1 to 10 (A.R. 336- 26 37). 27 then weighed 528 pounds (A.R. 336-37). 28 no reported abnormal findings, apart from a wound on his buttocks and In June of 2015, Plaintiff reported intermittent numbness and Plaintiff also reported left knee pain Plaintiff said he was still exercising daily and dieting but 5 On examination, Plaintiff had 1 a “waddling” gait (A.R. 338-39). He was diagnosed with left knee pain 2 likely related to his obesity, intermittent right hand weakness, 3 possibly related to his sleeping position, and Plaintiff was referred 4 for a weight loss surgery consultation (A.R. 339-40; see also A.R. 342 5 (normal left knee and cervical spine x-rays)). 6 In August of 2015, Plaintiff followed up after having surgery to 7 8 drain the wound to his buttocks (A.R. 347-51). 9 knee pain at a 5 on a scale of 1 to 10 (id.). Plaintiff reported Plaintiff then 10 reportedly weighed 501 pounds (A.R. 351). In November of 2015, 11 Plaintiff reported right knee pain at a 3 on a scale of 1 to 10, and 12 lower back pain for the previous two days at a 4 on a scale of 1 to 10 13 (A.R. 357-58). 14 357). 15 muscle relaxer (A.R. 360). Plaintiff then reportedly weighed 489 pounds (A.R. Plaintiff was diagnosed with lumbar strain and prescribed a 16 In December of 2015, Plaintiff underwent another surgery to drain 17 18 the wound to his buttocks (A.R. 362). In April of 2016, Plaintiff 19 reported knee and lower back pain at a 5 on a scale of 1 to 10 (A.R. 20 364-65). 21 2016, Plaintiff returned, reporting sporadic lower back pain at a 4 on 22 a scale of 1 to 10, which Plaintiff said he had experienced for the 23 past three months(A.R. 374-75). 24 (id.). 25 tenderness and weighed 463 pounds (A.R. 374, 376). 26 prescribed Tramadol for pain (A.R. 376). 27 /// 28 /// He was diagnosed with lumbago (A.R. 366). In September of Ibuprofen assertedly was not helping On examination, Plaintiff reportedly had lumbar paraspinal 6 Plaintiff was 1 In October of 2016, Plaintiff returned, reporting left knee pain 2 at a 6 on a scale of 1 to 10 and lower back pain at an 8 on a scale of 3 1 to 10 (A.R. 380-82). 4 his knee and reported that the therapy had not helped (A.R. 382).2 5 examination, Plaintiff had lumbar paraspinal tenderness, positive 6 straight leg raising and positive McMurray testing (A.R. 382). 7 Plaintiff was diagnosed with derangement of the meniscus of the left 8 knee and the Tramadol prescription was continued (A.R. 382-83). 9 November of 2016, Plaintiff returned, reporting knee and neck pain at Plaintiff had finished physical therapy for 10 a 6 on a scale of 1 to 10, intermittent right hand weakness, and 11 rectal pain (A.R. 388-89, 391). 12 continued (A.R. 391). On In Again, the Tramadol prescription was 13 14 The record contains two opinions by consultative examiners. In a 15 “Complete Psychiatric Evaluation” dated October 31, 2014, a 16 consultative examiner found that Plaintiff has a mood disorder, not 17 otherwise specified, which causes no mental impairments (A.R. 294-99). 18 In a “Complete Orthopaedic Evaluation” dated November 6, 2014, 19 consultative examiner Dr. Herman R. Schoene found that Plaintiff has 20 “extreme morbid obesity” but no functional limits apart from possible 21 vision limitations due to Plaintiff’s history of corneal transplant 22 surgery (A.R. 303-07). 23 bilateral knee pain, hand pain, chest pain, ankle pain, foot pain, and 24 low back pain (A.R. 303-04). Plaintiff reportedly had complained of On examination, Plaintiff reportedly 25 26 27 28 2 A physical therapy treatment note from July of 2016 reported a temporary decrease in left knee pain for five days, which returned when Plaintiff worked out at the gym (A.R. 368). Plaintiff said he had injured his lower back three months earlier while working out at the gym (A.R. 369). 7 1 weighed 547 pounds, had a grip strength of up to 35 pounds on the 2 right side and up to 45 pounds on the left side, motor strength, 3 sensation, and reflexes grossly within normal limits, and no reported 4 abnormalities (A.R. 304-06). 5 As noted above, state agency physicians reviewed the record in 6 7 December of 2014 and April of 2015, and found Plaintiff capable of 8 light work with some postural limitations (A.R. 82-105). 9 10 II. Summary of Plaintiff’s Testimony and Statements 11 At the hearing in April of 2017, Plaintiff testified that he was 12 13 5'6" tall and weighed 468 pounds (A.R. 44). Plaintiff, then 31 years 14 old, lived with his parents and siblings (A.R. 43-44). 15 a valid driver’s license, but said that he did not drive because he 16 did not have a vehicle and would rather be safe and have his parents 17 or siblings drive him places (A.R. 45, 55). 18 in 2008 because he could not see out of his right eye, and he 19 subsequently had a cornea transplant (A.R. 46). 20 work after his transplant, but said nobody would hire him, most likely 21 because of his weight (A.R. 48). 22 he had been offered a job (A.R. 48). 23 that Plaintiff have another cornea transplant in his right eye (A.R. 24 49). 25 needs a cornea transplant, but Plaintiff said he would not have 26 surgery on both eyes due to the risks (A.R. 49-50). 27 corrected vision was 20/80, which permitted him to read if materials 28 are within nine inches of his face (A.R. 54-55). Plaintiff had Plaintiff stopped working Plaintiff looked for He said he then would have worked if Doctors had just recommended Plaintiff said he cannot see out of his left eye, which also 8 Plaintiff’s Plaintiff said 1 wearing his glasses gives him migraine headaches, for which he takes 2 ibuprofen (A.R. 56). 3 Plaintiff testified that he has arthritis in his extremities and 4 5 his weight causes him to have low back pain, joint pain, pain and 6 swelling in his feet, problems bending over and problems doing 7 physical work (A.R. 57-59; see also A.R. 222 (Plaintiff reporting 8 similar issues in a “Function Report - Adult” form)). 9 that his feet are always swollen, but get worse when he stands (A.R. Plaintiff said 10 64). Plaintiff testified that he has to lie down for 45 minutes to an 11 hour, four to five times each day to relieve pain and edema in his 12 lower extremities (A.R. 58, 61, 65). 13 Tramadol and ibuprofen for his pain (A.R. 58, 66). 14 said that he has numbness in his hands throughout the day, which 15 allegedly prevents him from gripping (A.R. 58-59). 16 estimated that he could stand for 20 to 25 minutes at a time before 17 needing to sit or lie down, sit for 40 minutes at a time before 18 needing to stand up, walk 20 feet before needing to sit down, and lift 19 up to 15 pounds, but with noted difficulty when his hands go numb 20 (A.R. 59-62). 21 needing to lie down (A.R. 65). 22 “a while,” and said that his back, joints and feet were “really 23 hurting” (A.R. 65). 24 also said he was not getting any treatment for it (A.R. 63). Plaintiff said he was taking Plaintiff also Plaintiff Plaintiff estimated that he could last two hours before Plaintiff had been at the hearing for Although Plaintiff said he has depression, he 25 26 Plaintiff testified that, on an average day, he gets up, helps 27 around the house with chores such as throwing out trash, goes to the 28 gym with a friend where he uses a sauna and steam room, and tries to 9 1 walk (A.R. 63-64). In a “Function Report - Adult - Third Party” form, 2 Plaintiff’s mother reported that Plaintiff has no problem with 3 personal care and spends his days watching television, reading, using 4 Facebook, and helping around the house (i.e., making sandwiches, 5 salads and microwave foods, which takes him between 10 and 25 minutes, 6 and washing dishes, cleaning the kitchen, bathroom and living room, 7 which takes him 25 to 30 minutes), and doing yard work (mowing the 8 lawn) twice a month (A.R. 213-14, 216; see also A.R. 223-24, 226 9 (Plaintiff reporting similar activities)). Although Plaintiff did not 10 drive because he did not have a car, he could go out daily and ride in 11 a car, and he could shop in stores once a week for food for 12 approximately 30 minutes (A.R. 215, 225). 13 trouble squatting, bending, standing, walking, kneeling, stair 14 climbing and seeing, with his obesity limiting him to walking 15 approximately 20 feet before needing to rest (A.R. 217, 227). Plaintiff reportedly has 16 17 III. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements 18 Regarding the Severity of Plaintiff’s Symptoms Without Stating 19 Legally Sufficient Reasons for Doing So. 20 21 In assessing Plaintiff’s residual functional capacity, the ALJ 22 found that Plaintiff’s obesity imposes some limitations on lifting, 23 carrying, pushing, pulling, and some environmental limitations. 24 A.R. 26-27. 25 statements suggesting greater limitations as “not entirely consistent 26 with the medical evidence and other evidence in the record” (A.R. 21). 27 /// 28 /// See However, the ALJ rejected Plaintiff’s testimony and 10 1 Where, as here, an ALJ finds that a claimant’s medically 2 determinable impairments reasonably could be expected to cause some 3 degree of the alleged symptoms of which the claimant subjectively 4 complains, any discounting of the claimant’s complaints must be 5 supported by “specific, cogent” findings. 6 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 7 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 8 Cir. 1996) (indicating that ALJ must state “specific, clear and 9 convincing” reasons to reject a claimant’s testimony where there is no See Berry v. Astrue, 622 10 evidence of malingering).3 11 suffice. 12 (the ALJ’s credibility findings “must be sufficiently specific to 13 allow a reviewing court to conclude the ALJ rejected the claimant’s 14 testimony on permissible grounds and did not arbitrarily discredit the 15 claimant’s testimony”) (internal citations and quotations omitted); 16 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 17 must “specifically identify the testimony [the ALJ] finds not to be 18 credible and must explain what evidence undermines the testimony”); 19 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically Generalized, conclusory findings do not See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 20 21 22 23 24 25 26 27 28 3 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 101415 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 11 1 which symptom testimony is not credible and what facts in the record 2 lead to that conclusion.”); see also Social Security Ruling 16-3p 3 (eff. March 28, 2016).4 4 5 The ALJ rejected Plaintiff’s complaints that he can stand for 6 only 20-25 minutes at a time, carry only 10-15 pounds, and would need 7 to lie down for 45 to 60 minutes. 8 as supposedly not substantiated by the objective medical evidence, 9 reasoning: (a) Plaintiff has made no cardiopulmonary complaints The ALJ rejected these complaints 10 resulting from his obesity; (b) there is no evidence of “any specific 11 or quantifiable impact on pulmonary, endocrine, or cardiac 12 functioning[,] but there is some evidence of impact on [Plaintiff’s] 13 musculoskeletal functioning”; (c) although Plaintiff complained of 14 hand pain causing intermittent numbness and loss of grip strength, the 15 consultative examiner found Plaintiff had a grip strength of up to 35 16 pounds in one hand and 45 pounds in the other, neurological findings 17 showed sensation was normal, and Plaintiff’s upper extremity muscle 18 strength reportedly was normal; (d) Plaintiff assertedly had been 19 prescribed only ibuprofen and muscle relaxers for Plaintiff’s back 20 pain; (e) Plaintiff’s knee pain assertedly decreased with physical 21 therapy; (f) imaging studies of Plaintiff’s back and knees allegedly 22 were normal; (g) the orthopedic consultative examiner found Plaintiff 23 24 25 26 27 28 4 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). SSR 16–3p superseded SSR 96–7p, but may have “implemented a change in diction rather than substance.” R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016); see also Treviso v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent already required”). 12 1 had “no functional limits for lifting, carrying, pushing, and pulling 2 despite claimant’s musculoskeletal issues with his obesity”; 3 (h) Plaintiff assertedly is able to control his hypertension through 4 medication and has no evidence of end organ damage, stroke, or 5 cardiovascular disease as a result of the hypertension; and 6 (i) Plaintiff’s vision allegedly is stable and he assertedly is able 7 to see “reasonably well” with glasses or contacts (e.g., testing 8 showed his corrected vision was 20/50 in one eye and 20/60 in the 9 other) (A.R. 22-26). The ALJ also reasoned that Plaintiff’s ability 10 to cook, clean, shop for groceries, do yard work and use Facebook is 11 inconsistent with his claimed limitations (A.R. 21, 27). 12 ALJ stated that Plaintiff assertedly testified he does not drive 13 because he does not see well, but Plaintiff reported in a Function 14 Report that he does not drive because he does not own a vehicle (A.R. 15 21). Finally, the 16 17 The ALJ’s stated reasoning is legally deficient. First, to the 18 extent the ALJ stated that Plaintiff’s pain treatment involved only 19 ibuprofen, muscle relaxers and physical therapy, the ALJ 20 mischaracterized the record. 21 the record shows that, in September of 2016, Plaintiff began taking 22 Tramadol, an opioid, for knee and back pain (A.R. 66, 376). 23 material mischaracterization of the record can warrant remand. 24 e.g., Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 25 1999). Consistent with Plaintiff’s testimony, An ALJ’s See, 26 27 28 To the extent the ALJ purported to rely on the objective medical evidence, an ALJ “may not discredit the claimant’s testimony as to the 13 1 severity of symptoms merely because they are unsupported by objective 2 medical evidence.” 3 1998) (citation omitted); see Burch v. Barnhart, 400 F.3d 676, 681 4 (9th Cir. 2005) (“lack of medical evidence” can be “a factor” in 5 rejecting credibility, but cannot “form the sole basis”). 6 because the ALJ’s other stated reasons for discounting Plaintiff’s 7 testimony fail, the ALJ cannot properly rely on a claimed lack of 8 medical evidence to discount Plaintiff’s statements and testimony. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. Here, 9 10 The ALJ also purported to rely on asserted inconsistencies 11 between Plaintiff’s admitted daily activities and his subjective 12 testimony and statements. 13 admitted activities and claimed incapacity properly may impugn the 14 accuracy of a claimant’s testimony and statements under certain 15 circumstances. 16 (9th Cir. 2012) (ALJ properly discredited pain allegations as 17 contradicting claimant’s testimony that she gardened, cleaned, cooked, 18 and ran errands); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th 19 Cir. 2008) (claimant’s “normal activities of daily living, including 20 cooking, house cleaning, doing laundry, and helping her husband in 21 managing finances” was sufficient explanation for discounting 22 claimant’s testimony). 23 Ninth Circuit opinions discussing when a claimant’s daily activities 24 properly may justify a discounting of the claimant’s testimony and 25 statements. 26 Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a 27 plaintiff has carried on certain daily activities, such as grocery 28 shopping, driving a car, or limited walking for exercise, does not in Inconsistencies between a claimant’s See, e.g., Thune v. Astrue, 499 Fed. App’x 701, 703 However, it is difficult to reconcile certain Compare Stubbs-Danielson v. Astrue with Vertigan v. 14 1 any way detract from her credibility as to her overall disability”); 2 see also Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) 3 (daily activities of cooking, household chores, shopping and caring 4 for a cat insufficient to discount the claimant’s subjective 5 complaints). 6 7 In the present case, the Court finds that Plaintiff’s limited 8 admitted activities – activities he reportedly did for only up to 30 9 minutes at a time and which could accommodate Plaintiff’s reported 10 need to lie down four to five times a day – are not so extensive as 11 properly to undermine Plaintiff’s credibility. 12 Berryhill, 874 F.3d 648, 667-68 (9th Cir. 2017) (ALJ erred in finding 13 disparity between claimant’s reported daily activities and symptom 14 testimony where the claimant indicated she could use the bathroom, 15 brush her teeth, wash her face, take her children to school, wash 16 dishes, do laundry, sweep, mop, vacuum, go to doctor’s appointments, 17 visit her mother and father, cook, shop, get gas, and feed her dogs, 18 where the ALJ failed to acknowledge the claimant’s explanation 19 consistent with her symptom testimony that she could complete only 20 some tasks in a single day and regularly needed to take breaks). 21 While it appears that Plaintiff reportedly was going to the gym daily 22 beginning as early as January of 2015 (see A.R. 63, 327), the record 23 does not indicate that he performed any activities while at the gym 24 which would be particularly probative of his ability to work (see A.R. 25 21, 27). See Revels v. 26 27 “The Social Security Act does not require that claimants be 28 utterly incapacitated to be eligible for benefits, and many home 15 1 activities may not be easily transferable to a work environment where 2 it might be impossible to rest periodically or take medication.” 3 Smolen v. Chater, 80 F.3d at 1283 n.7. 4 that Plaintiff performed activities that would translate to sustained 5 activity in a work setting on a regular and continuing basis for eight 6 hours a day, five days a week. 7 daily activities may detract from symptom testimony where a claimant 8 is able to spend a substantial part of the day performing household 9 chores or other activities transferrable to a work setting) (citing The record does not reflect See id. (noting that a claimant’s 10 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). There is no 11 material inconsistency between Plaintiff’s admitted activities and 12 Plaintiff’s alleged incapacity. 13 The ALJ also purported to discern a possible inconsistency 14 15 between Plaintiff’s testimony and his prior statements. “In 16 determining credibility, an ALJ may engage in ordinary techniques of 17 credibility evaluation, such as considering . . . inconsistencies in 18 [a] claimant’s testimony.” 19 the ALJ stated that Plaintiff testified that he did not drive because 20 he does not see well, but previously had reported that he did not 21 drive because he did not own a car (A.R. 21). 22 Plaintiff’s testimony. 23 because he does not have a vehicle and because he would rather be safe 24 and get rides from family members (A.R. 45). 25 inconsistency between Plaintiff’s testimony and his prior statements 26 concerning why he does not drive. 27 /// 28 /// Burch v. Barnhart, 400 F.3d at 680. Here, The ALJ misstated Plaintiff testified that he did not drive 16 There is no material The Court is unable to conclude that the ALJ’s failure to state 1 2 legally sufficient reasons for discounting Plaintiff’s credibility was 3 harmless. 4 to the ultimate non-disability determination.” 5 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted). 6 For example, the vocational expert testified that, if the hypothetical 7 person required a sit/stand option, such a requirement would preclude 8 work (A.R. 75-76). 9 hypothetical person required unscheduled work breaks for a cumulative “[A]n ALJ’s error is harmless where it is inconsequential Molina v. Astrue, 674 The vocational expert also testified that, if the 10 total of four hours a week, such a requirement would preclude work 11 (A.R. 79-80). 12 performable by a person as limited as Plaintiff claims to be (A.R. 69- 13 80). The vocational expert did not testify there are jobs 14 15 IV. Remand for Further Administrative Proceedings is Appropriate. 16 17 Because the circumstances of the case suggest that further 18 administrative review could remedy the ALJ’s errors, remand is 19 appropriate. 20 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) 21 (remand is an option where the ALJ fails to state sufficient reasons 22 for rejecting a claimant’s excess symptom testimony); but see Orn v. 23 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 24 cite Connett for the proposition that “[w]hen an ALJ’s reasons for 25 rejecting the claimant’s testimony are legally insufficient and it is 26 clear from the record that the ALJ would be required to determine the 27 claimant disabled if he had credited the claimant’s testimony, we 28 remand for a calculation of benefits”) (quotations omitted); see also McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see 17 1 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the 2 district court concludes that further administrative proceedings would 3 serve no useful purpose, it may not remand with a direction to provide 4 benefits”); Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 5 2015) (discussing the evidently narrow circumstances in which a court 6 will order a benefits calculation rather than further proceedings); 7 Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (remanding for 8 further proceedings where the ALJ failed to state sufficient reasons 9 for deeming a claimant’s testimony not credible); Vasquez v. Astrue, 10 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that a court need not 11 “credit as true” improperly rejected claimant testimony where there 12 are outstanding issues that must be resolved before a proper 13 disability determination can be made); see generally INS v. Ventura, 14 537 U.S. 12, 16 (2002) (upon reversal of an administrative 15 determination, the proper course is remand for additional agency 16 investigation or explanation, except in rare circumstances); Treichler 17 v. Commissioner, 775 F.3d at 1101 n.5 (remand for further 18 administrative proceedings is the proper remedy “in all but the rarest 19 cases”). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 18 CONCLUSION 1 2 3 For all of the foregoing reasons,5 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: 9 February 26, 2019. 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 19
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