Jennifer M. Burright v. Commissioner of Social Security Administration, No. 8:2019cv00153 - Document 17 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Autumn D. Spaeth. IT IS ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter for further proceedings consistent with this Order. Judgement shall be entered accordingly. (see document for further details) (hr)
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Jennifer M. Burright v. Commissioner of Social Security Administration Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 J ENNIFER M. B., an Individual, 12 Plaintiff, 13 v. 14 Case No.: 8:19-0 0 153 ADS MEMORANDUM OPINION AND ORDER OF REMAND ANDREW M. SAUL, Com m issioner of Social Security, 15 Defendant. 16 17 18 I. IN TROD U CTION Plaintiff J ennifer M. B1 (“Plaintiff”) challenges Defendant Andrew M. Saul2 , 19 Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 20 of her application for a period of disability and disability insurance benefits (“DIB”). 21 22 23 24 1 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. 2 The com plaint, and thus the docket, do not nam e the Com m issioner of Social Security. On J une 17, 20 19, Saul becam e the Com m issioner. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 For the reasons stated below, the decision of the Com m issioner is REVERSED and 2 REMANDED. 3 II. 4 FACTS RELEVAN T TO TH E APPEAL A review of the entire record reflects certain uncontested facts relevant to this 5 appeal. Prior to filing her application for social security benefits, Plaintiff last worked in 6 20 14 perform ing inventory control for 3M. (Adm inistrative Record “AR” 214, 221-26).3 7 Her previous work experience also included waitressing, residential caregiving, serving 8 as a prison social worker, and a brief attem pt to work for Lyft. (AR 68-69, 214, 221-26). 9 At the adm inistrative hearing, Plaintiff testified that she held several positions at 3M 10 that all required m anual labor, and she was eventually prom oted to inventory. (AR 46- 11 52). That job was the least dem anding, but it still required her to pull heavy item s off of 12 a fork truck, and m ove them to areas where she could count inventory. (AR 52). She 13 also had to roll powder barrels, weighing up to 50 0 pounds, from one area to another. 14 (AR 52). She counted buckets, weighing 70 pounds or m ore, which she had to lift 15 herself and m ove between shelves. (AR 52). Finally, she had to pull boxes out of “big 16 bins,” inventory, and return them to the bins. (AR 52). Som etim es she was required to 17 stand at the com puter in the docks and do com puter work, although she was never fully 18 trained for that because she had to leave for her back surgeries. (AR 52-53). 19 Plaintiff contends that she has been unable to work since 20 15 due to her 20 collapsing spine, pain, and other issues associated with her degenerative back. (AR 46, 21 54, 67, 69). After her two back surgeries, 3M tried to accom m odate her condition by 22 23 24 3 Plaintiff’s certified earnings record indicates additional incom e from 3M in 20 15 and 20 16, but Plaintiff explained it was disability pay from that com pany. (AR 27-28 45, 74, 198, 20 0 ). -2- 1 changing her chair and work environm ent, and she tried changing her lifestyle, but she 2 still had problem s and the doctors recom m ended yet another surgery. (AR 46). 3 Plaintiff states that she has been struggling with her back for a long tim e and it 4 upsets her to talk about it. (AR 54, 66, 91). Her parents had histories with back 5 problem s, but she didn’t experience her issues until she was 40 . (AR 54-55). It started 6 as a burning sensation in her foot, which lasted about a year. (AR 55). She saw various 7 foot doctors until they discovered she had an enlarged vertebra from arthritis 8 throughout her body. (AR 55). The enlarged vertebra ruptured a disc, and this caused 9 nerve problem s which m ade her foot feel like it was “on fire.” (AR 55). 10 Plaintiff had her first surgery in 20 10 , a lam inotom y at L4-5. (AR 55). 11 Im m ediately after surgery, her foot stopped hurting, and she thought everything was 12 going to get better. (AR 55). She went back to light duty at work, but, by the end of that 13 first year, she stated she could no longer walk across a room . (AR 55). 14 That led to a spinal fusion in April 20 17. (AR 55, 72). She had to fight with the 15 insurance com panies to get the surgery approved. (AR 73). At one point, it was 16 approved, but then they denied it and told her to try physical therapy for three m onths, 17 have m ore MRIs and other tests done, and even take part in psychological therapy. (AR 18 72-73). Plaintiff contends that the insurance com pany strung her out for a year, causing 19 stress and anxiety. (AR 73). After it was finally approved and she had the second 20 surgery, her doctor told her not to go back to work. (AR 55-56). However, Plaintiff 21 states that she again returned to light duty because her em ployer wasn’t going to pay her 22 if she didn’t. (AR 55-56). 23 24 -3- Plaintiff testified she tried to ignore her issues and hoped to get better, but she 1 2 can’t recall a day in her 40 s of not having back pain.4 (AR 56-57, 70 ). Finally, her pain 3 becam e so bad she could no longer ignore it. (AR 56). Her surgeon said she would need 4 yet another fusion, this tim e at L2-3. (AR 56). He explained to her that the pain would 5 never get better, and her condition would continue to degenerate, but the fusion could 6 fix just that place in her back. (AR 56). In the last nine years, she m ay have had only a 7 two-m onth period where she wasn’t either needing back surgery, waiting for back 8 surgery, or healing from back surgery, and she “do[es]n’t want to live like that 9 anym ore.” (AR 57). Since her April 20 17 surgery, Plaintiff states that she still has daily pain, but the 10 11 severity of the bad days and daily pain is less. (AR 60 , 72). Last m onth, however, she 12 had m ore bad days than good; about two weeks out of the m onth were “bad” as a result 13 of new sciatic problem s that didn’t exist before surgery. (AR 60 ). If she “really bab[ies] 14 herself,” she m ight only have one or two bad weeks. (AR 60 ). She stated was going to 15 physical therapy for her new problem s, but she stopped when her insurance stopped 16 covering therapy. (AR 60 , 63). In lieu of another surgery and with her doctor’s approval she’s been doing Pilates 17 18 and exercises to strengthen her core. (AR 57). When she’s not having nerve problem s 19 and her sciatica isn’t bothering her, she does her workout, which includes 40 m inutes of 20 stretches and crunches that “em ulate” what she was doing in physical therapy. (AR 57, 21 59). Currently, her doctor is waiting for her bones to solidify around the m ost recent 22 hardware so he can refer her to a pain-m anagem ent specialist. (AR 57-59). 23 24 4 Plaintiff turned 49 the day after she testified at the hearing. (AR 39, 57, 184). -4- To reduce pain, Plaintiff spends a lot of tim e lying horizontal or draped over an 1 2 exercise ball. (AR 60 , 73, 90 ). She does the latter for about 20 m inutes at a tim e, and it 3 relieves som e of the pressure where she has the m ost pain. (AR 60 -61). She also 4 perform s “Child’s Pose”5 frequently, and she uses heat pads and ice packs. (AR 61). Plaintiff spends m ost of her tim e at hom e. (AR 58). She cannot sit in norm al 5 6 chairs because they lead to pain, so she has different spots set up with pillows for 7 com fort. (AR 58, 62). She cooks for her teenage son and drives him to school and 8 activities, and she can grocery shop but needs the groceries bagged lightly. (AR 58-60 , 9 65-66). She can drive for about an hour, but she needs a brace to do that, and for sitting 10 long intervals and em ergencies. Plaintiff contends the brace rubs and causes soreness in 11 other areas on her body. (AR 57, 61-62). She goes to dinner som etim es, but even that 12 can cause back pain for the days following. (AR 65). Her son does the bulk of anything 13 that requires lifting, such as taking out the garbage or doing laundry. (AR 58). Recently, Plaintiff volunteered at the concession table for her son’s wrestling 14 15 m eet. (AR 63, 65). She stood for two hours until she experienced a sharp pain, and the 16 whole next day was “pretty sad.” (AR 63). Walking has always been her “therapy.” (AR 64). She used to walk three- to 17 18 three-and-a-half m iles. (AR 64). Now, due to her back, she becom es sore suddenly and 19 needs to return hom e. (AR 64). She still walks, when she is up for it, but she stays near 20 hom e. (AR 64). 21 22 23 24 5 The Child’s Pose is a stretch that helps the back and m uscles around the hips. See https:/ / www.m ayoclinic.org/ healthy-lifestyle/ stress-m anagem ent/ m ultim edia/ childspose/ vid-20 453580 (last visited J une 5, 20 20 ). -5- 1 Plaintiff takes a m uscle relaxer and pain m edication, but only in em ergencies 2 because of the side effects. (AR 64-65). When she takes her pain m edications, and then 3 stops, she experiences headaches. (AR 64). Som etim es taking her m uscle relaxer and 4 then alternating hot and cold packs for a few hours will “really kind of take the edge off.” 5 (AR 65). 6 Plaintiff states can sit for about an hour and a half before her back becom es 7 painful. (AR 69). If she sits for too long, she can’t do norm al things, like get on the 8 toilet. (AR 69). When she hurts herself, it can affect her for days. (AR 70 ). Everything 9 creaks, and she m oves slowly. (AR 70 ). She can stand for only a few m inutes before she 10 m ust stretch, try to bend, and do other things—like pull her knee to her chest—to 11 alleviate her pain. (AR 70 .) When she sleeps, her back always hurts. (AR 70 -71). She 12 states that she hasn’t had normal REM sleep in years. (AR 71). This causes fatigue, and 13 she alternates between exhaustion and m anic alertness during the day. (AR 71). Her 14 pain fluctuates from a level three to ten. (AR 70 ). 15 Plaintiff tried to work for Lyft in Septem ber and October to help pay for her 16 m edical bills, but she was unable to do it for enough hours to com pensate for the vehicle 17 Lyft rented for her. (AR 68). Working for Lyft caused sciatic pain in her back and down 18 her leg, and soreness that crept up her back. (AR 68). She also experienced sharp pains 19 and tenderness that m ade her tear up. (AR 69). 20 Plaintiff does not feel as if she has healed. (AR 63). She states that she has lost 21 over thirty percent of her flexibility. (AR 63). Her legs and buttocks have not recovered 22 from the last surgery. (AR 63, 74). She’s had to adapt her whole life around slowing the 23 degeneration in her back. (AR 63). Her surgeon also does not believe she’s healed, and 24 he has advised her not lift anything over 10 pounds, bend, reach, or sit for extended -6- 1 periods of tim e. (AR 58-59, 63, 74). Her surgeon’s physician assistant does not think 2 Plaintiff “belong[s] in the work force.” (AR 74). Plaintiff believes any work activity 3 would further hurt or injure her. (AR 67). She can’t im agine doing anything six hours a 4 day, let alone eight. (AR 67, 90 ). 5 III. PROCEED IN GS BELOW 6 A. Pro ce d u ral H is to ry 7 Plaintiff protectively filed her claim for Title II social security benefits on 8 Novem ber 2, 20 15, alleging disability beginning August 15, 20 15. (AR 25, 184-85). 9 Plaintiff’s DIB application was denied initially on March 7, 20 16 (AR 10 3), and upon 10 reconsideration on J une 3, 20 16 (AR 116). A hearing was held before ALJ Susanne M. 11 Cichanowicz on February 6, 20 18. (AR 41-92). Plaintiff, represented by counsel, 12 appeared and testified at the hearing, as well as vocational expert J oseph Torres. (AR 13 41-92). 14 On March 20 , 20 18, the ALJ found Plaintiff was “not disabled” within the 15 m eaning of the Social Security Act.6 (AR 25-34). The ALJ ’s decision becam e the 16 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 17 review on Decem ber 10 , 20 18. (AR 1-6). Plaintiff then filed this action in District Court 18 on J anuary 25, 20 19, challenging the ALJ ’s decision. [Docket (“Dkt.”) No. 1]. The case is ready for decision.7 19 20 21 22 23 24 6 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. § 423(d)(1)(A). 7 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. § 636(c), including for entry of final J udgm ent. [Dkt. Nos. 7, 10 ]. -7- 1 B. Su m m ary o f ALJ D e cis io n Afte r H e arin g 2 In the ALJ ’s March 20 , 20 18 decision (AR 25-34), the ALJ followed the required 3 five-step sequential evaluation process to assess whether Plaintiff was disabled under 4 the Social Security Act.8 20 C.F.R. § 40 4.1520 (a)(4). At s te p o n e , the ALJ 5 acknowledged that Plaintiff’s 3M earnings after the August 15, 20 15 alleged onset date 6 were for disability paym ents rather than work activity, as Plaintiff testified, and found 7 that Plaintiff’s work for Lyft was not sufficient to rise to substantial gainful activity. (AR 8 27-28). Accordingly, the ALJ found that Plaintiff had not engaged in substantial gainful 9 activity since her alleged onset date. (Id.) At s te p tw o , the ALJ found that Plaintiff had 10 the following severe im pairm ent: lum bar degenerative disc disease, status/ post 11 lam inotom y and two fusions. (AR 28). At s te p th re e , the ALJ found that Plaintiff 12 “does not have an im pairm ent or com bination of im pairm ents that m eets or m edically 13 equals the severity of one of the listed im pairm ents in 20 CFR Part 40 4, Subpart P, 14 Appendix 1 (20 CFR 40 4.1520 (d), 40 4.1525[,] and 40 4.1526).” (AR 28). 15 16 17 18 19 20 21 22 23 24 8 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing her past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. § 40 4.1520 ); see also Ford v. Saul, 950 F.3d 1141, 1148-49 (9th 20 20 ). -8- The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) 9 1 2 to perform sedentary work as work as defined in 20 C.F.R. § 40 4.1567(a) 10 with the 3 following additional lim itations: [Plaintiff] can occasionally balance, stoop, and clim b ram ps or stairs; she cannot kneel, crouch, crawl, or clim b ladders, ropes or scaffolds; and she m ust be allowed to alternate between sitting and standing at will, while rem aining on task. 4 5 6 (AR 28-32). 7 At s te p fo u r, based on Plaintiff’s vocational background, testim ony, earnings 8 record, and the vocational expert’s testim ony, the ALJ found that Plaintiff was unable to 9 perform her past relevant work as an industrial cleaner, production m achine attendant, 10 packer, or stock control clerk. (AR 32). 11 At s te p five , the ALJ found that, “[c]onsidering [Plaintiff]’s age, education, work 12 experience, and [RFC], there are jobs that exist in significant num bers in the national 13 econom y that [she] can perform .” (AR 33). The ALJ accepted the vocational expert’s 14 testim ony that Plaintiff would be able to perform the representative occupations of: lens 15 installer (Dictionary of Occupational Titles (“DOT”) 713.687-0 26); assem bler (DOT 16 17 18 19 20 21 22 23 9 An RFC is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. § 40 4.1545(a)(1). 10 “Sedentary work” is defined as lifting no m ore than 10 pounds at a tim e and occasionally lifting or carrying articles like docket files, ledgers, and sm all 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. J obs are sedentary if walking and standing are required occasionally and other sedentary criteria are m et. 20 C.F.R. § 40 4.1567(a); see also Casey H. v. Berryhill, 20 18 WL 562930 3, at *3 n.3 (C.D. Cal. Oct. 29, 20 18). 24 -9- 1 739.687-0 66); and table worker (DOT 739.687-182). (AR 33-34). As such, the ALJ 2 found that Plaintiff was “not disabled,” as defined in the Social Security Act, from 3 August 15, 20 15, through the date of the ALJ ’s decision. (AR 34). 4 IV. AN ALYSIS 5 A. Is s u e s o n Ap p e al 6 Plaintiff raises three issues for review: (1) whether the ALJ properly considered 7 her subjective allegations regarding her pain and lim itations; (2) whether the ALJ 8 properly considered the State Agency opinions; and (3) whether new and m aterial 9 evidence supports rem and. [Dkt. No. 16 (J oint Stipulation), p. 2]. For the reasons 10 below, the Court agrees with Plaintiff regarding the ALJ ’s failure to properly consider 11 her subjective testim ony, and rem ands on that ground. 12 B. Stan d ard o f Re vie w 13 A United States District Court m ay review the Com m issioner’s decision to deny 14 benefits pursuant to 42 U.S.C. § 40 5(g). The District Court is not a trier of the facts but 15 is confined to ascertaining by the record before it if the Com m issioner’s decision is 16 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 10 10 (9th Cir. 20 14) 17 (District Court’s review is lim ited to only grounds relied upon by ALJ ) (citing Connett v. 18 Barnhart, 340 F.3d 871, 874 (9th Cir. 20 0 3)). A court m ust affirm an ALJ ’s findings of 19 fact if they are supported by substantial evidence and if the proper legal standards were 20 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). 21 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 22 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 23 weighing both evidence that supports and evidence that detracts from the Secretary’s 24 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and -10 - 1 internal quotation m arks om itted). “‘Where evidence is susceptible to m ore than one 2 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 3 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 4 (9th Cir. 20 0 5)); see Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If 5 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 6 substitute our judgm ent for that of the ALJ .”). However, the Court m ay review only “the 7 reasons provided by the ALJ in the disability determ ination and m ay not affirm the ALJ 8 on a ground upon which [s]he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 9 20 0 7) (citation om itted). 10 C. Th e ALJ Faile d to Pro p e rly Co n s id e r Plain tiff’s Su bje ctive Co m p lain ts 11 12 Plaintiff asserts that the ALJ im properly evaluated her subjective testim ony 13 regarding her pain and lim itations. Defendant contends that the ALJ appropriately 14 found Plaintiff’s testim ony not fully supported by the record, and Plaintiff’s 15 disagreem ent with the ALJ is not evidence of error. 16 17 1. Legal Standard for Evaluating Claim ant’s Testim ony A claim ant carries the burden of producing objective m edical evidence of his or 18 her im pairm ents and showing that the im pairm ents could reasonably be expected to 19 produce som e degree of the alleged sym ptom s. Benton ex rel. Benton v. Barnhart, 331 20 F.3d 10 30 , 10 40 (9th Cir. 20 0 3). Once the claim ant m eets that burden, m edical 21 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 22 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Adm in., 119 F.3d 23 789, 792 (9th Cir. 1997) (“claim ant need not present clinical or diagnostic evidence to 24 support the severity of [her] pain”) (citation om itted)). -11- Once a claim ant has m et the burden of producing objective m edical evidence, an 1 2 ALJ can reject the claim ant’s subjective complaint “only upon (1) finding evidence of 3 m alingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331 4 F.3d at 10 40 ; Brown-Hunter v. Colvin, 80 6 F.3d 487, 489 (9th Cir. 20 15) (“we require 5 the ALJ to specify which testim ony she finds not credible, and then provide clear and 6 convincing reasons, supported by evidence in the record, to support that credibility 7 determ ination”); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 20 17). 8 9 The ALJ m ay consider at least the following factors when weighing the claim ant’s credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the 10 claim ant’s testim ony or between the claim ant’s testim ony and his or her conduct; (3) his 11 or her daily activities; (4) his or her work record; and (5) testim ony from physicians and 12 third parties concerning the nature, severity, and effect of the sym ptom s of which she 13 com plains. Thom as v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 20 0 2) (citing Light, 119 14 F.3d at 792). “If the ALJ ’s credibility finding is supported by substantial evidence in the 15 record, [the court] m ay not engage in second-guessing.” Id. at 959 (citing Morgan v. 16 Apfel, 169 F.3d 595, 60 0 (9th Cir. 1999)). 17 2. The ALJ Failed to Provide Clear and Convincing Reasons Supported by Substantial Evidence 18 19 Having carefully reviewed the record, the Court finds that the ALJ failed to 20 articulate specific clear and convincing reasons for discounting Plaintiff’s testim ony. 11 21 The ALJ found Plaintiff’s various statem ents of record about her im pairm ents, activities, 22 23 24 11 The ALJ did not m ake a finding of m alingering in her opinion. Thus, in discounting Plaintiff’s subjective com plaints, the ALJ was required to articulate specific, clear and convincing reasons. See Benton, 331 F.3d at 10 40 ; Brown-Hunter, 80 6 F.3d at 489. -12- 1 and the intensity, persistence, and lim iting effects of her sym ptom s “generally 2 consistent” with her testim ony. (AR 29). The ALJ also found her m edically 3 determ inable im pairm ents could reasonably be expected to cause her alleged sym ptom s. 4 (Id.). However, the ALJ nonetheless discounted Plaintiff’s subjective com plaints based 5 on her reporting less-severe pain after surgery, her daily activities, and because her 6 testim ony was not consistent with the objective m edical evidence. (AR 29-32). 7 First, the ALJ im properly faulted Plaintiff regarding her hearing testim ony about 8 her condition after surgery. (AR 30 ). The ALJ specifically noted Plaintiff’s testim ony 9 that her pain was less severe and she had fewer “bad days” than prior to surgery. (AR 10 30 ). While the ALJ could consider m edical im provem ent, here, it’s an insufficient 11 reason to discount the testim ony. Plaintiff’s candid acknowledgm ent of slight post- 12 surgical im provem ent, (AR 60 , 72), is not necessarily inconsistent with her testim ony 13 that she still experiences disabling pain and related sym ptom s even after the procedure 14 (AR 60 , 72 (explaining that her pain before surgery wasn’t “that different” from her pain 15 now). See, e.g., Hernandez v. Astrue, 20 0 9 WL 56760 , at *7 (C.D. Cal. J an. 6, 20 0 9) 16 (claim ant’s acknowledgm ent that sym ptom s im proved with treatm ent are not 17 necessarily inconsistent with allegations of a disabling im pairm ent). Moreover, she 18 estim ated about half the m onth was still “bad” as a result of new sciatic problem s that 19 arose after surgery, and she testified her doctor said her back will continue to 20 degenerate and the pain will never go away. (See AR 56, 58-59, 63, 74). There is 21 nothing inherently inconsistent about that testim ony, at least such that it m eets the 22 clear and convincing standard. See Benton, 331 F.3d at 10 40 ; Neym an-Reese v. 23 Berryhill, 20 18 WL 13360 48, at *8 (D. Or. Mar. 13, 20 18) (even though claim ant 24 testified her condition im proved, and the record unequivocally reflected im provem ent, -13- 1 sym ptom abatem ent was not a clear and convincing reason to discount subjective 2 com plaints because claim ant continued to experience sym ptom s of her “lifelong 3 condition”); Hernandez, 20 0 9 WL 56760 at *7 (even though record supported ALJ ’s 4 finding that condition im proved with m edication and therapy, ALJ im properly rejected 5 claim ant’s credibility because claim ant explained the im provem ent was only partial and 6 he still suffered significant sym ptom s). 7 Second, the ALJ pointed to Plaintiff’s testim ony that she walked regularly and, on 8 “m ost days,” she com pleted 40 m inutes of physical therapy-type exercise, and then 9 listed a num ber of other activities, including cooking, driving her son to school and 10 activities, going to dinner “som etim es,” and shopping for groceries. (AR 30 ). The ALJ 11 found that “her described activities do not support the severity of her alleged pain and 12 functional restrictions.” (AR 30 ). This is insufficient for several reasons. Plaintiff’s 13 testim ony that she followed treatm ent recom m endations and attem pted to get better by 14 walking and exercising, (see AR 57 (Plaintiff’s explanation that she partakes in her 15 previously “approved” physical-therapy exercises with her doctor’s “blessing”), 59 (“I 16 follow all of m y doctor’s instructions.”), 375 (treating physician’s letter to insurance 17 com pany indicating Plaintiff “has been doing a daily hom e exercise program ”), is a 18 reason to credit Plaintiff, not a convincing reason to doubt her com plaints. 12 Cf. Molina 19 v. Astrue, 674 F.3d 110 4, 1112 (9th Cir. 20 12) (“the ALJ m ay consider . . . unexplained or 20 inadequately explained failure . . . to follow a prescribed course of treatm ent”); see 20 21 C.F.R. § 40 4.1530 (claim ants m ust “follow treatm ent prescribed by [their] m edical 22 source(s) if this treatm ent is expected to restore [their] ability to work”); Garcia v. 23 24 12 Notably, and inconsistently, the ALJ later found that Plaintiff’s “expressed desire to avoid another surgery is certainly reasonable . . ..” (AR 31). -14- 1 Berryhill, 20 17 WL 94290 3, at *5 (W.D. Wash. Mar. 10 , 20 17) (claim ant’s testim ony that 2 she walked twice a week and stretched daily is evidence she followed treatm ent 3 recom m endations, not a valid reason supported by substantial evidence for discounting 4 her statem ents). 5 More im portantly, while the ALJ listed other activities in addition to walking and 6 exercising, such as driving, cooking, eating, and grocery shopping, the Ninth Circuit has 7 “repeatedly warned that ALJ s m ust be especially cautious in concluding that daily 8 activities are inconsistent with testim ony about pain, because im pairm ents that would 9 unquestionably preclude work and all the pressures of a workplace environm ent will 10 often be consistent with doing m ore than m erely resting in bed all day.” Garrison, 759 11 F.3d at 10 16; Vertigan v. Halter, 260 F.3d 10 44, 10 50 (9th Cir. 20 0 1) (“This court has 12 repeatedly asserted that the m ere fact that a plaintiff has carried on certain daily 13 activities, such as grocery shopping, driving a car, or lim ited walking for exercise, does 14 not in any way detract from her [testim ony] as to her overall disability.”). “[O]nly if 15 [the] level of activity [was] inconsistent with [a claim ant’s] claim ed lim itations would . . . 16 activities have any bearing on . . . [subjective testim ony].” Garrison, 759 F.3d at 10 16. 17 Moreover, the ALJ failed to m ake requisite findings as to the application of any of 18 Plaintiff’s activities to the work setting. See Martinez v. Berryhill, 721 F. App’x 597, 60 0 19 (9th Cir. 20 17) (ALJ im properly discounted testim ony "based on [claim ant’s] daily 20 activities . . . [without] support[ing] the conclusions as to the frequency of those 21 activities or their transferability to the workplace.”); Orn, 495 F.3d at 630 (ALJ m ust 22 m ake “specific findings related to [the daily] activities and their transferability to 23 conclude that a claim ant’s daily activities warrant an adverse credibility 24 -15- 1 determ ination”). Accordingly, the second reason for discounting Plaintiff’s testim ony is 2 not clear or convincing. 3 The rem aining reason provided by the ALJ is also insufficient. On at least three 4 occasions, the ALJ referenced the sam e justification for doubting Plaintiff’s com plaints: 5 the lack of support in the objective m edical evidence of record. See AR 30 (finding 6 Plaintiff’s statem ents were “not entirely consistent with the m edical evidence”), 30 (the 7 “objective evidence in the record and [Plaintiff’s] surgical history dem onstrate that [she] 8 has back related functional lim itations, but they do not fully support her allegations”); 9 34 (“relevant evidence in the record . . . does not generally support [Plaintiff]’s 10 statem ents”). However, because the ALJ did not provide any other clear and convincing 11 reason for discounting the subjective com plaints, reliance on a conflict with objective 12 evidence alone is not a sufficient basis to support the credibility determ ination. See 13 Burch, 40 0 F.3d at 681 (lack of objective m edical evidence to support subjective 14 sym ptom allegations cannot form the sole basis for discounting pain testim ony) ; 15 Dschaak v. Astrue, 20 11 WL 4498835, at *1 (D. Or. Sept. 27, 20 11) (“[O]nce the[] other 16 bases for the ALJ ’s decision were discarded as erroneous, the ALJ ’s credibility 17 determ ination could not rely solely on conflicts with the m edical evidence.”). The ALJ ’s 18 sum m ary of the m edical evidence is not sufficient to support the finding. See Brown- 19 Hunter, 80 6 F.3d at 494 (credibility determ ination insufficient when ALJ “sim ply 20 state[s] her non-credibility conclusion and then sum m arize[s] the m edical evidence”). 21 The Court thus concludes the ALJ com m itted error in discounting Plaintiff’s 22 testim ony without a clear and convincing explanation supported by substantial 23 evidence. In this instance, the Court cannot conclude that the ALJ ’s error was harm less. 24 See, e.g., Id. at 492-93 (ALJ ’s failure adequately to specify reasons for discrediting -16- 1 claim ant testim ony “will usually not be harm less”). In light of the significant functional 2 lim itations reflected in Plaintiff’s subjective statem ents, the Court cannot “confidently 3 conclude that no reasonable ALJ , when fully crediting the [Plaintiff’s] testim ony, could 4 have reached a different disability determ ination.” Stout v. Com m ’r, Soc. Sec. Adm in., 5 454 F.3d 10 50 , 10 55-56 (9th Cir. 20 0 6). 6 D. Th e Co u rt D e clin e s to Ad d re s s Plain tiff’s Re m ain in g Argu m e n ts 7 Having found that rem and is warranted, the Court declines to address Plaintiff’s 8 rem aining argum ents. See Hiler v. Astrue, 687 F.3d 120 8, 1212 (9th Cir. 20 12) 9 (“Because we rem and the case to the ALJ for the reasons stated, we decline to reach 10 [plaintiff’s] alternative ground for rem and.”); see also Alderm an v. Colvin, 20 15 WL 11 12661933, at *8 (E.D. Wash. J an. 14, 20 15) (rem anding in light of interrelated nature of 12 ALJ ’s decision to discount claim ant’s credibility and give appropriate consideration to 13 physician’s opinions, step-two findings, and step-five analysis); Augustine ex rel. 14 Ram irez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 20 0 8) (“[The] Court need 15 not address the other claim s plaintiff raises, none of which would provide plaintiff with 16 any further relief than granted, and all of which can be addressed on rem and.”). 17 Because it is unclear, in light of these issues, whether Plaintiff is in fact disabled, rem and 18 here is on an “open record.” See Brown-Hunter, 80 6 F.3d at 495; Bunnell, 336 F.3d at 19 1115-16. The parties m ay freely take up all issues raised in the J oint Stipulation, and any 20 other issues relevant to resolving Plaintiff’s claim of disability, before the ALJ . 21 E. 22 Rem and for further adm inistrative proceedings, rather than an award of benefits, Re m an d Fo r Fu rth e r Ad m in is trative Pro ce e d in gs 23 is warranted here because further adm inistrative review could rem edy the ALJ ’s errors. 24 See Brown-Hunter, 80 6 F.3d at 495 (rem anding for an award of benefits is appropriate -17- 1 in rare circum stances). The Court finds that the ALJ failed to properly evaluate 2 Plaintiff’s subjective com plaints. On rem and, the ALJ shall properly review and 3 evaluate Plaintiff’s pain testim ony and reassess Plaintiff’s RFC. The ALJ shall then 4 proceed through steps four and five, if necessary, to determ ine what work, if any, 5 Plaintiff is capable of perform ing. 6 V. 7 ORD ER IT IS ORDERED that J udgm ent shall be entered REVERSING the decision of the 8 Com m issioner denying benefits, and REMANDING the m atter for further proceedings 9 consistent with this Order. J udgem ent shall be entered accordingly. 10 11 DATE: Septem ber 23, 20 20 12 13 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 14 15 16 17 18 19 20 21 22 23 24 -18-
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