James Troy Williams v. Carolyn W. Colvin, No. 8:2016cv02141 - Document 25 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)
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James Troy Williams v. Carolyn W. Colvin Doc. 25 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 JAMES TROY WILLIAMS, 13 Plaintiff, 14 15 16 17 v. NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 16-02141-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 PROCEEDINGS 21 22 On December 1, 2016, pro se Plaintiff, James Troy Williams, filed 23 a Complaint seeking review of the denial of his application for 24 Disability Insurance Benefits. (Docket Entry No. 1). The parties have 25 consented to proceed before the undersigned United States Magistrate 26 27 28 Judge. (Docket Entry Nos. 8-9). On April 14, 2017, Defendant filed an 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). 1 Dockets.Justia.com 1 Answer along with the Administrative Record (“AR”). (Docket Entry Nos. 2 15-16). 3 On July 13, 2017, Plaintiff filed a “Memorandum of Points and Authorities in Support of the Plaintiff’s Motion for Summary Judgment” 4 (“Plaintiff’s Brief”). (Docket Entry No. 20). On August 14, 2017, 5 6 Defendant filed a “Memorandum 7 (“Defendant’s Brief”). in Support of (Docket Entry No. 22). 8 Plaintiff filed a Reply Brief. Defendant’s Answer” On August 31, 2017, (Docket Entry No. 23). 9 10 The Court has taken this matter under submission without oral 11 argument. 12 See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social Security Case,” filed December 6, 2016 (Docket Entry No. 6). 13 14 15 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 16 17 On June 17, 2011, Plaintiff, formerly employed as an interior 18 designer for homes and as a sales representative for a ceramic tiles 19 company (see AR 53, 104, 322, 366-77), filed an application for 20 21 22 Disability Insurance Benefits, alleging an inability to work because of his disabling condition since October 1, 2009. (AR 298-99). 23 24 On January 31, 2013, Administrative Law Judge Keith Dietterle (“ALJ 25 Dietterle”), heard testimony from Plaintiff (who was represented by 26 counsel) and vocational expert Alan Boroskin. (See AR 50-69). On March 27 5, 2013, ALJ Dietterle issued a decision denying Plaintiff’s 28 application. (See AR 133-41). After determining that Plaintiff had 2 1 severe impairments –- “sleep apnea, hypothyroidism, obesity, and 2 affective disorder” (AR 135) –- but did not have an impairment or 3 combination of impairments that met or medically equaled the severity of 4 one of the Listed Impairments (AR 135-36), ALJ Dietterle found that 5 6 Plaintiff had the residual functional capacity (“RFC”)2 to perform medium 7 work with the following limitations: frequent postural functions; no 8 exposure to unprotected heights and dangerous or fast-moving machinery; 9 and work involving only simple, routine tasks. (AR 136-39). ALJ 10 Dietterle then determined that Plaintiff was not able to perform any 11 past relevant work (AR 139), but that Plaintiff could perform jobs 12 existing in significant numbers in the national economy, and was 13 therefore not disabled within the meaning of the Social Security Act. 14 15 (AR 139-40). 16 17 Plaintiff requested that the Appeals Council review ALJ Dietterle’s 18 decision. (See AR 216-17). On August 25, 2014, the Appeals Council 19 vacated ALJ Dietterle’s decision and remanded the matter in order for 20 the Administrative Law Judge to do the following: (1) “Obtain additional 21 evidence concerning the clamant’s musculoskeletal impairment in order to 22 23 24 complete the administrate record in accordance with the regulatory standards regarding consultative examinations and existing medical 25 evidence”; (2) “Further, if necessary, obtain evidence from a medical 26 expert to clarify the nature and severity of the claimant’s impairment”; 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 1 (3) “Further evaluate the claimant’s musculoskeletal disorder with 2 reference to the pertinent evidence of record, including the claimant’s 3 treatment history”; and (4) “If warranted by the expanded record, obtain 4 supplemental evidence from a vocational expert to clarify the effect of 5 6 the assessed limitations on the claimant’s occupational base[.]” (See AR 7 149-50). 8 9 On July 21, 2015, another Administrative Law Judge (“ALJ”), Joan 10 Ho, heard testimony from Plaintiff (who was represented by ocunsel), 11 medical expert Ronald Kendrick and vocational expert Jeanine Metildi. 12 (See AR 72-09). On Sepember 4, 2015, the ALJ issued a decision denying 13 Plaintiff’s application. (See AR 22-37). After determining that 14 15 Plaintiff had severe impairments –- ”obesity; degenerative disc disease 16 of the cervical spine; cervical spondylosis; degenerative disc disease 17 of the lumbar spine; and major depressive disorder” (AR 25-26)3 –- but 18 did not have an impairment or combination of impairments that met or 19 medically equaled the severity of one of the Listed Impairments (AR 2620 27), the ALJ found that Plaintiff had the RFC to perform a range of 21 sedentary work4 with the following limitations: can lift and/or carry up 22 23 3 The ALJ found that Plaintiff’s hypothyroidism, low 24 testosterone, sleep apnea and upset stomach to be were nonsevere impairments, and that Plaintiff’s fibromyalgia and bipolar disorder were (AR 25). 25 not medically determinable impairments. 26 27 28 4 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary (continued...) 4 1 to 15 pounds occasionally and 10 pounds frequently; can stand and/or 2 walk 4 hours and sit for 6 hours during an 8-hour workday with normal 3 breaks; cannot climb ramps, stairs, ladders, ropes and scaffolding; can 4 bend, stoop, kneel, crouch and crawl occasionally; can reach in all 5 6 directions, including overhead, frequently; can use hands and fingers 7 bilaterally frequently; cannot be exposed to workplace hazards such as 8 dangerous moving machinery and unprotected heights; limited to simple, 9 routine and repetitive tasks, but can sustain attention and 10 concentration skills sufficient to carry out work-like tasks with 11 reasonable pace and persistence; and can interact with co-workers, 12 supervisors and the general public occasionally. (AR 27-34). The ALJ 13 then determined that Plaintiff was not able to perform any past relevant 14 15 work (AR 35), but that Plaintiff could perform jobs existing in 16 significant numbers in the national economy and was therefore not 17 disabled within the meaning of the Social Security Act. (AR 35-36). 18 19 Plaintiff requested that the Appeals Council review the ALJ’s 20 decision. 21 (See AR 17). (See AR 1-5). The request was denied on October 14, 2016. The ALJ’s decision then became the final decision of the 22 23 24 Commissioner, allowing this Court to review the decision. See 42 U.S.C. §§ 405(g), 1383(c). 25 // 26 // 27 28 4 (...continued) criteria are met.” 20 C.F.R. §§ 404.1567(a). 5 1 PLAINTIFF’S CONTENTIONS 2 3 Plaintiff alleges that the ALJ failed to properly: (1) assess 4 5 6 Plaintiff’s credibility; (2) assess certain medical medical evidence (including the opinion of one of Plaintiff’s treating physicians); (3) 7 evaluate the medical expert’s testimony or consider the written 8 objection to the medical expert’s testimony; (4) assess the opinions of 9 several of Plaintiff’s treating physicians; (5) determine Plaintiff’s 10 RFC; and (6) consider Plaintiff’s mental impairments. (See Plaintiff’s 11 Brief at 2-23; Reply Brief at 2-7). 12 13 DISCUSSION 14 15 After consideration of the record as a whole, the Court finds that 16 17 Plaintiff’s first claim of error warrants a remand for further 18 consideration. Since the Court is remanding the matter based on 19 Plaintiff’s first claim of error, the Court will not address Plaintiff’s 20 second through sixth claims of error. 21 22 23 A. The ALJ Did Not Properly Assess Plaintiff’s Credibility 24 25 Plaintiff asserts that the ALJ erred in finding that Plaintiff’s 26 testimony about his pain was not credible. (See Plaintiff’s Brief at 227 9; Reply Brief at 2-4). Defendant asserts that the ALJ properly 28 6 1 considered Plaintiff’s testimony and found Plaintiff not fully credible. 2 (See Joint Stip. at 14-17). 3 4 Plaintiff made the following statements in a “Function Report - 5 6 Adult” dated July 28, 2011 (see AR 335-42): 7 8 He lives alone in an apartment, but he is going to move 9 in with a friend or family in September 2011 because he can no 10 longer afford it. 11 pets (he had to give away a dog because he was unable to take 12 He does not take care of anyone else or care of the dog). (See AR 335-36, 342). 13 14 15 As a result of his impairments, he no longer is able to 16 swim, dance, take long walks or hikes, work out, work, or 17 engage in social functions. His impairments affect his sleep; 18 he has difficulty falling asleep, he has bad nightmares, he 19 does not sleep well, and he feels paralyzed when he wakes up. 20 His impairments affect his abilities to bathe (he can only 21 shower, and bathing makes him fell light-headed), to care for 22 23 his hair (his hair has become oily and itchy), and to shave 24 (shaving causes itching and a burning sensation). Although he 25 does not need special reminders to take care of personal needs 26 and grooming, he often puts them off until later in order to 27 sleep more or feel better (which does not happen). 28 7 He needs 1 special reminders to take medicine (he forgets whether or not 2 he has already taken medicine). (See AR 336-37). 3 4 He prepares his own meals, simple things likes sandwiches 5 6 and frozen dinners (i.e., spaghetti, soup, rice and beans). 7 Once a day he makes semi-prepared hot food (which takes 15 to 8 20 minutes), and the rest of his meals must be ready-made. 9 His impairments have made him cook less because of his low 10 energy level. 11 (5 minutes), laundry (5 minutes), and vaccuuming once in a 12 His househould chores are hand-washing dishes while (10 to 15 minutes). He cannot do outdoor work because 13 of the heat and physical exertion. He goes outside when 14 15 necessary, to get mail, go to doctors’ appointments, and get 16 groceries, driving a car (“[q]uick trips in my immediate 17 vicinity”). He shops in stores only for groceries, every week 18 or two (30 to 40 minutes). 19 change, handle a saving account, and use a checkbook or money 20 orders. He is able to pay bills, count (See AR 337-39). 21 22 23 He no longer does his hobbies and interests, namely, 24 swimming, biking, hiking, long walks and long car trips, 25 because he is short of breath, exhausted, has muscle fatigue 26 and is overwhelmed. 27 the phone once a day, and getting together with a friend once 28 a week. He spends time with others, talking on He does not go to any places on a regular basis, and 8 1 he does not feel well enough to attend social functions. 2 has problems getting along with others because he does not 3 feel like his “old self” and is irritable, less patient, 4 He depressed, anxious and nervous. (See AR 339-40). 5 6 7 His impairments affect his lifting, squatting, bending, 8 standing, reaching, walking, sitting, 9 kneeling, climbing,, and getting along with others. stair- His joints are 10 tight and sore all the time, he feels shortness of breath and 11 light-headed, he has hot flashes and sweats profusely, and his 12 strength “can give-out depending on [his] emotions.” He can 13 walk for 10 minutes before he has to rest, and then must rest 14 15 for at least 3 minutes before he can resume walking. 16 cannot 17 conversations and television shows. 18 well, and he believes he can follow follow written and spoken 19 instructions well. 20 figures, and he has never been fired or laid off from a job 21 finish what he starts; he falls asleep He during He can pay attention He usually gets along fine with authority because of problems getting along with other people. He does 22 23 not handle stress well (ruminating thoughts make it more 24 difficult for him to sleep). He does not handle changes in 25 routine well. (See AR 340-41). 26 27 Plaintiff testified at the January 31, 2013 administrative hearing 28 as follows (see AR 52-65): 9 1 He has a Bachelor’s degree from the Interior Designers 2 Institute. 3 his parents about a year ago (for financial reasons). He last 4 He lived by himself until he moved back in with worked in July 2008 as an interior designer kitchen and 5 6 project designer, which consisted of 1/3 walking, 1/3 sitting 7 and 1/3 standing and required him to lift and carry 100 pounds 8 (large tile and flooring samples). 9 all of his jobs had been in interior design and had roughly 10 the same walking, sitting, standing, lifting requirements. He 11 is 6’4 1/2” tall and weighs 330 pounds (his normal weight is 12 During the past 15 years 220 pounds; he gained 80 pounds during a 9-month period in 13 2009 as a result of hypothyroidism). He has difficulty 14 15 sleeping and has sleep apnea (he uses a CPAP which helps but 16 is not perfect). 17 problem, he goes to bed between 3 a.m. and 5 a.m. (before he 18 falls asleep he just lies in bed for 2 to 3 hours; he has 19 tried activities like reading and watching television, but 20 sometimes they just overstimulate him), and he is tired in the 21 As a result of his thyroid (metabolism) morning because his mind is racing. He sees Dr. Molina for 22 23 his hypothyroidism every two weeks or at least once a month, 24 and he takes a synthetic form of Levothyroxine (and has tried 25 a natural remedy, Armour, which apparently did not work). 26 has problems with chronic fatigue, and naps for about an hour 27 or two during the day (he sometimes has to pull his car over 28 to the side of the ride to take a nap). 10 (See AR 52-57). He 1 He has severe depression; he becomes extremly withdrawn 2 and has suicidal ideations. 3 depression. He does not have hallucinations. (See AR 59-61). He sees a psychiatrist for his 4 5 6 He has pain in his neck and has headaches, and sees Dr. 7 Demner for treatment. The pain travels from his neck to the 8 base of his spine. 9 every three months on average. He has had to go to the emergency room 10 least 4 times a week since 2003. 11 and muscle relaxers. 12 He has used a TENS unit at He also has used heat, ice For pain management, he has received trigger point injections and epidurals in his upper and lower 13 thoracic. The past 2 months he has had two epidurals, which 14 15 provided him relief for about a week. Dr. Demner has 16 recommended a spinal fusion joining the neck and the cervical 17 spine. 18 to go to physical therapy for 6 months to one year. 19 62-64). He is considering it, but his insurance requires him (See AR 20 21 He does not have any difficulty with dressing or bathing. 22 23 He has difficulty putting on his shoes, but he usually wears 24 slip-on shoes. He does minimal household chores -- making his 25 bed, cleaning the kitchen countertop, laundry, things that do 26 not require much bending. 27 minutes (he begins to feel drowsy). 28 (depending on its comfort) for about 2 hours. He can walk for He can drive for a maximum of 20 11 He can sit in a chair 1 2 blocks. 2 75 pounds if he is standing upright (i.e., a box on a 3 counter); he cannot lift that weight if it is on the ground 4 He does not use any assistive device. He can lift and he has to bend (it would cause him pain or to spasm 5 6 later). (See AR 57-59). 7 8 9 His circle of friends has been reduced to one or two people. He goes out with his friends about once every three 10 months, and goes out to eat about once a month. 11 have any hobbies, and does not belong to any clubs or social 12 organizations. He does not He reads the news on the computer every day 13 (about 30 minutes). (See AR 60-61). 14 15 16 His energy level and sleepiness would keep him from being 17 able to do a simple job on a full-time basis. 18 has good days, but more often has bad days. 19 cannot get out of bed and get himself going. 20 down because his back hurts or because his pain and depression 21 are overwhelming. He sometimes 2 times a week he He just lies (See AR 64-65). 22 23 24 Plaintiff testified at the July 21, 2015 administrative hearing as 25 follows (see AR 75-76, 84-102): 26 27 28 He is single, lives with his parents in a house, is 6'4" tall, and weighs 330 pounds. He drives three to four times a 12 1 week, usually to the grocery store. 2 the hearing. His parents drove him to (See AR 76). 3 4 He stopped working because he was laid off. When asked 5 6 if he would have continued to work had he not been laid off, 7 he responded, “My health was deteriorating and I was going to 8 many, many doctors at the time, so when I was laid off I 9 thought oh, great, now I can concentrate on my health. At 10 that time, he was having problems with primarily his back 11 (cervical spine and lumbar spine), and he was going to (with 12 insurance) physical therapy twice a week and to the 13 chiropractor once a week. From July 2008 to the end of 2013, 14 15 his back problems became much worse –- he got severe spasms, 16 shooting nerving pain (from his lower back down to his feet) 17 that would cause him to go off-balance and fall, and burning 18 sensations in his feet. From July 2008 to the end of 2013, 19 his worse 20 compressed, and the pain became a shooting, radiating pain 21 neck pain became -- the over his head and way down his back. nerve became more His neck pain affects 22 23 his ability to move his neck side to side or tilting. Many 24 neurosurgeons have recommended surgery on his neck, and the 25 plan is to proceed with a neck fusion (but a neurologist still 26 needs to say how many neck segments need to be fused). 27 to the end of 2013, he had hypothyroidism for about a year and 28 a half. Prior His hypothyroidism levels have been stable since 13 1 2010, but he still has various symptoms, such as voice 2 hoarseness, skin problems, heavy rosacea (which he treats with 3 ointments), and constipation. 4 had fibromyalgia which has been an all-over body ache causing 5 Prior to the end of 2013, he pain between a level 6 to a level 8. (See AR 84-90). 6 7 Prior to the end of 2013, he could stand for 3 minutes 8 9 before he started feeling pain, and after standing for about 10 10 minutes he needed to sit down or change his position. 11 he can only stand for about 5 minutes before spasms begin and 12 he has to change position. 13 if he sits for too long. 14 Now He also needs to change position He has problems with concentration; noises and lights easily break his attention span. (See AR 15 16 90-92). 17 At the beginning of his hypothyroidism, his psychiatric 18 19 care 20 depressants; he saw Dr. Batagleno at least every 2 weeks for 21 about six months. 22 was well-managed with mood stabilizers and anti- However, prior to the end of 2013, he had severe depression, severe anxiety and irrational fears -- his 23 anxiety became uncontrollable, the combination of pill 24 25 cocktails he was taking did not continue to work (different 26 doctors changed his medications), he would talk himself out of 27 doing things like getting out of the house, and he ultimately 28 14 1 isolated himself. His mental health issues have stabilized. 2 (See AR 92-93, 99-100). 3 4 5 With respect to daily activities from July 2008 to the end of 2013, he stayed home laying flat on his back an average 6 7 8 9 of 4 to 5 hours a day, watching television, taking online courses, talking to friends. He also would have to lie down if he had sit and/or stood for an hour and a half. He was 10 able to do laundry and dishes until 2011 or 2012; since he 11 cannot bend lower than his waist, the only thing he now is 12 able to do is clean his own dish (meaning, wash it, put it on 13 the counter, and a family member puts it in the dishwasher). 14 He took one or two online courses (i.e., graphic design, real 15 16 estate, art history) every semester; he took the courses 17 because they forced him to focus and engage in something, and 18 he did okay (meaning, he got C grades). 19 some classes. He also went in for (See AR 93-95, 101-02). 20 21 22 Although he used to use hot and cold packs for pain relief, he now uses only cold packs on his lower back and neck 23 because of his skin issues. Prior to the end of 2013, he took 24 25 Flexeril and Naprosyn and then started taking Percocet in 26 November 2013. With the Flexeril and Naprosyn he was able to 27 get out of bed and perform basic functions. In November 2012, 28 he reported to his physican, Dr. Demner, that he had an 15 1 average pain level of 5 to 6 (but he claims that he actually 2 had an average pain level of 8 but that Dr. Demner tried to 3 minimize his condition). 4 relaxers. 5 He now is taking Norco and muscle He has had multiple trigger–point epidurals on both his cervical and lumbar spines; the relief lasted for 6 7 about two weeks. (See AR 95-96). 8 9 After briefly discussing Plaintiff’s testimony at the two 10 administrative hearing as well as a consultative examiner’s notation 11 (see AR 28)5, the ALJ addressed Plaintiff’s credibility as follows: 12 13 14 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable 15 16 impairments could reasonably be expected to cause some of his 17 alleged symptoms, but that his statements concerning the 18 intensity, persistence and limiting effects of these symptoms 19 are not entirely credible for the reasons explained in this 20 decision. 21 22 In finding the claimant’s allegations not entirely 23 credible, the undersigned notes they are not fully supported 24 25 by or consistent with the medical evidence of record. 26 27 28 5 With respect to the wrote, “The undersigned also examiner he spends 90 percent to eat and go to the bathroom consultative examiner’s notation, the ALJ notes the claimant told a consultative of his day lying in bed, getting up only (Exhibit 10-F, p. 5).” 16 1 (AR 28). 2 3 The ALJ proceeded to discuss the medical evidence relating to 4 Plaintiff’s physical impairments. (See AR 28-29). 5 The ALJ then addressed Plaintiff’s credibility regarding his mental impairments 6 7 8 as follows: “The undersigned also notes the evidence does not fully support his allegations regarding his mental health issues.” (AR 9 29). The ALJ proceeded to discuss the medical evidence relating to 10 Plaintiff’s mental health impairments. (See AR 30). 11 12 The ALJ continued to address Plaintiff’s credibility as follows: 13 14 In finding the claimant’s allegations not entirely 15 16 credible, the undersigned also notes the claimant has made some 17 inconsistent 18 suggesting he was not as limited as he has alleged. 19 stated, for example, that he does not have any difficulty 20 taking care of his personal needs, is able to drive, sit for 21 two hours at a time, and lift up to 75 pounds as long as he 22 statements does not have to bend. and has provided some information He has During the July 21, 2015 hearing, the 23 claimant testified he drives three or four times a week to the 24 25 grocery store. He also acknowledged he stopped working because 26 he was laid off, not because of his medical problems. He also 27 testified on 28 computer, does chores such as washing his dishes, and has taken he goes out with 17 friends, spends time the 1 and 2 claimant’s 3 necessarily 4 passed an online ability class to every semester. perform he establish these capable was While the does not obtaining and activities of maintaining employment through his date last insured, his 5 6 ability to perform these activities does indicate he was not as 7 limited as he has alleged and that he was not, in fact, 8 spending 90 percent of his time lying in bed. 9 10 (AR 30). 11 12 A claimant initially must produce objective medical evidence 13 establishing a medical impairment reasonably likely to be the cause of 14 15 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 16 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a 17 claimant produces objective medical evidence of an underlying impairment 18 that could reasonably be expected to produce the pain or other symptoms 19 alleged, and there is no evidence of malingering, the ALJ may reject the 20 claimant’s testimony regarding the severity of his or her pain and 21 symptoms only by articulating specific, clear and convincing reasons for 22 23 24 doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 25 2007)); see also Smolen, supra; Reddick v. Chater, 157 F.3d 715, 722 26 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th 27 Cir. 1997). Because the ALJ does not cite to any evidence in the record 28 18 1 of malingering, the “clear and convincing” standard stated above 2 applies. 3 4 Here, the ALJ failed to provide clear and convincing reasons for 5 6 finding that Plaintiff’s testimony about the intensity, persistence and 6 7 limiting effects of his symptoms was not entirely credible. 8 9 First, the ALJ failed to “specifically identify ‘what testimony is 10 not credible and what evidence undermines [Plaintiff’s] complaints.’” 11 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. 12 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, supra, 80 13 F.3d at 1284 (“The ALJ must state specifically what symptom testimony is 14 15 not credible and what facts in the record lead to that conclusion”). 16 17 Second, the ALJ’s determination that Plaintiff’s testimony about 18 his physical impairments and mental impairments was not fully supported 19 by the medical evidence was an insufficient reason for finding Plaintiff 20 less than fully credible with respect to his testimony about the 21 severity of her physical and mental impairments. Once a claimant 22 23 demonstrates medical evidence of an underlying impairment, “an ALJ ‘may 24 6 The Court will not consider reasons for finding Plaintiff not 25 entirely credible (see Defendant’s Brief at 2-5) that were not given by the ALJ in the Decision. See Connett v. Barnhart, 340 F.3d 871, 874 26 (9th Cir. 2003)(“We are constrained to review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), Pinto 27 v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); and Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons 28 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”). 19 1 not disregard [a claimant’s testimony] solely because it is not 2 substantiated affirmatively by objective medical evidence.’” Trevizo v. 3 Berryhill, 862 F.3d 987, 1001 (9th Cir. 2017)(quoting Robbins v. Soc. 4 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)). 5 6 7 Third, the ALJ’s partial discrediting of Plaintiff’s testimony 8 based on his ability to perform certain daily activities, such as taking 9 care of his personal needs, washing his dishes, driving, driving three 10 or four times a week to the grocery store, sitting for two hours at a 11 time, lifting up to 75 pounds if he does not have to bend, going out 12 with friends, spending time on the computer, and taking and passing an 13 online class every semester, was not a clear and convincing reason. See 14 15 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“[T]he mere 16 fact that a plaintiff has carried on certain daily activities . . . does 17 not in any way detract from her credibility as to her overall 18 disability. One does not need to be ‘utterly incapacitated’ in order to 19 be disabled.”); Reddick, supra (“Only if the level of activity were 20 inconsistent with the Claimant’s claimed limitations would these 21 activities have any bearing on Claimant’s credibility.”). 22 23 24 It is not clear whether the ALJ considered Plaintiff’s testimony 25 about his limited abilities to perform such daily activities (see AR 336 26 [Plaintiff testified he had issues with bathing, caring for his hair and 27 shaving], AR 59 [Plaintiff testified he had difficulty putting on his 28 shoes and socks], AR 337 [Plaintiff testified that hand-washing his 20 1 dishes took him 5 minutes], AR 95 [Plaintiff testified that since 2 2011/2012, he was only able to wash his own dish and place it on the 3 counter], AR 338 [Plaintiff testified that he drove only for “[q]uick 4 trips in [his] immediate vicinity], AR 338 [Plaintiff testified that a 5 6 trip to the grocery store took 30 to 40 minutes], AR 58 [Plaintiff 7 testified he could not drive for more than 20 minutes], AR 76 [although 8 Plaintiff testified he drove three or four times a week to the grocery 9 store, he did not state how long each trip took him], AR 76 [Plaintiff 10 testified his parents drove him to the July 21, 2015 administrative 11 hearing], AR 58 [Plaintiff testified he was able to sit for about 2 12 hours “[d]epending on the comfort of the chair”], AR 91 [Plaintiff 13 testified that he had to adjust if he sat in a chair “for too long”], AR 14 15 58 [although Plaintiff testified that he could lift a maximum of 75 16 pounds if he was standing upright and did not have to bend, he did not 17 testify about the number of times he could lift that amount of weight in 18 that matter (and the ALJ did not not ask Plaintiff about his ability to 19 lift at the January 31, 2015 administrative hearing); and he testified 20 that lifting while bending would cause him a lot of pain], AR 339 21 [Plaintiff testified that he got together with a friend once a week], AR 22 23 24 60-61 [Plaintiff testified that he got together with friends once every three months], AR 92 [Plaintiff testified that his mental health issues 25 caused him to “ostracize” or isolate himself], AR 61 [Plaintiff 26 testified that he reads news on the computer for about 30 minutes 27 daily], and AR 101-02 [although Plaintiff testified he took and passed 28 online courses every semester, he testified he only received Cs, and he 21 1 did not testify about how much time the online courses took]. Moreover, 2 although, as noted by the ALJ, there is a statement in a January 3, 2012 3 consultative psychiatric examination report about Plaintiff spending 90 4 percent of his day lying down in bed (see AR 847-48),7 Plaintiff was not 5 6 asked about that statement or the context of that statement at either 7 administrative hearing. Therefore, the degree to which Plaintiff could 8 perform such daily activities may not have been inconsistent with his 9 testimony regarding his limitations. See Reddick, supra; see also 10 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th 11 Cir. 1999)(“If a claimant is able to spend a substantial part of his day 12 engaged in pursuits involving the performance of physical functions that 13 are transferable to a work setting, a specific finding as to this fact 14 15 may be sufficient to discredit a claimant’s allegations.”). 16 17 Fourth, to the extent that the ALJ found that Plaintiff was not 18 entirely credible based on Plaintiff’s testimony that he stopped working 19 because he was laid off, rather than because of his medical problems, 20 that reason was not clear and convincing. Although Plaintiff’s 21 testimony was unclear, his being laid off may have been related to his 22 23 24 deteriorating health situation (see AR 84). Unlike Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001)(finding that the ALJ’s reliance, in 25 7 The statement relied on by the ALJ was the following: “When 26 asked to describe his usual daily activity, the clamant answered, ‘Feel like crap when waking for about two hours, however, is inconsistent from 27 day-to-day foggy and headache); mostly neeed to lie on bed staring at ceiling because my back aches and I feel disgusting, this is 90% of my 28 day, interrupted by eating and bathroom trips.’” (underlining added for emphasis). 22 1 part, on the claimant’s false statements at the administrative hearing 2 and to a doctor that “he left his job because he was laid off, rather 3 than because he was injured”), a case relied on by Defendant (see 4 Defendant’s Brief at 4), there is no indication that Plaintiff gave 5 6 false information about why he left his employment. 7 8 B. Remand Is Warranted 9 10 The decision whether to remand for further proceedings or order an 11 immediate award of benefits is within the district court’s discretion. 12 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 13 14 15 useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise 16 this discretion to direct an immediate award of benefits. Id. at 1179 17 (“[T]he decision of whether to remand for further proceedings turns upon 18 the likely utility of such proceedings.”). However, where, as here, the 19 circumstances of the case suggest that further administrative review 20 could remedy the Commissioner’s errors, remand is appropriate. McLeod 21 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra, 22 23 211 F.3d at 1179-81. 24 25 Since the ALJ failed to properly assess Plaintiff’s credibility, 26 remand is appropriate. Because outstanding issues must be resolved 27 before a determination of disability can be made, and “when the record 28 as a whole creates serious doubt as to whether the [Plaintiff] is, in 23 1 fact, disabled within the meaning of the Social Security Act,” further 2 administrative proceedings would serve a useful purpose and remedy 3 defects. 4 Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)(citations omitted).8 5 6 ORDER 7 8 9 For the foregoing reasons, the decision of the Commissioner is 10 reversed, and the matter is remanded for further proceedings pursuant to 11 Sentence 4 of 42 U.S.C. § 405(g). 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 15 DATED: October 10, 2017 16 17 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 8 The Court has not reached any other issue raised by Plaintiff except to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s claims regarding the ALJ’s errors in failing to properly (1) assess certain medical medical evidence (including the opinion of one of Plaintiff’s treating physicians) (see Plaintiff’s Brief at 9-15; Reply Brief at 4-5), (2) evaluate the medical expert’s testimony or consider the written objection to the medical expert’s testimony (see Plaintiff’s Brief at 15-16; Reply Brief at 5), (3) assess the opinions of several of Plaintiff’s treating physicians (see Plaintiff’s Brief at 16-20; Reply Brief at 5-6), (4) determine Plaintiff’s RFC (see Plaintiff’s Brief at 20-22; Reply Brief at 6-7), and (5) consider Plaintiff’s mental impairments (see Plaintiff’s Brief at 22-23; Reply Brief at 7). Because this matter is being remanded for further consideration, these issues should also be considered on remand. 24
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