(SS) Avila v. Commissioner of Social Security, No. 1:2017cv00420 - Document 16 (E.D. Cal. 2017)

Court Description: ORDER GRANTING Plaintiff's Appeal From the Administrative Decision of the Commissioner of Social Security signed by Magistrate Judge Erica P. Grosjean on 7/6/2017. CASE CLOSED. (Jessen, A)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LORRAINE MARIE AVILA, Plaintiff, 12 v. 13 14 Defendant. 16 I. 17 19 20 21 INTRODUCTION Plaintiff Lorraine Avila seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were submitted without oral argument to the Honorable Erica P. Grosjean, United States Magistrate Judge.2 22 II. 23 24 ORDER REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT NANCY A. BERRYHILL, Acting Commissioner of Social Security1 15 18 Case No. 1:17-cv-00420-EPG BACKGROUND AND PRIOR PROCEEDINGS3 Plaintiff was 51 years old at the time of her hearing before the Social Security Administration. AR 38. She completed her education through the eleventh grade, but does not 25 1 26 27 28 Consistent with Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill, the new acting Commissioner of Social Security, is substituted in place of Carolyn W. Colvin. 2 The parties consented to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 4, 6.) The parties initially submitted their briefs to Magistrate Judge Kendall J. Newman before the case was transferred to Magistrate Judge Erica P. Grosjean on March 23, 2017. (ECF No. 15.) 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 1 have a GED or any vocational training. AR 42. Plaintiff most recently worked as a housekeeper 2 and waitress in 2010 but left after working caused her hands to “swell[ ] up.” AR 43. Plaintiff is 3 5’7” and weighs 211 pounds. AR 39. She lives in a house with her husband and two Chihuahuas. 4 AR 39. Her daily activities include walking around her neighborhood, watching TV, and napping. 5 AR 57-58. Plaintiff’s alleged conditions are pain and numbness in her neck, left shoulder, arm, hand, 6 7 and middle fingers. AR 216. On March 30, 2012, Plaintiff filed an application for disability 8 insurance benefits under Title II, alleging a disability beginning on December 4, 2008. AR 185- 9 188. The application was denied initially on November 5, 2012 and on reconsideration on May 6, 10 2013. AR 121-125, 132-137. Plaintiff filed a request for a hearing on May 14, 2013. AR 138-139. 11 The hearing was then conducted before Administrative Law Judge Cynthia Floyd (the “ALJ”) on 12 July 2, 2014. AR 27-46. On August 29, 2014, the ALJ issued an unfavorable decision 13 determining that Plaintiff was not disabled. AR 27. Plaintiff filed an appeal of this decision with 14 the Appeals Council. The Appeals Council denied the appeal, rendering the ALJ’s order the final 15 decision of the Commissioner. AR 1-6. 16 Plaintiff now challenges that decision, arguing that: (1) The ALJ failed to obtain an 17 explanation for the vocational expert’s deviation from the Dictionary of Occupational Titles 18 (“DOT”); (2) the ALJ incorrectly found Plaintiff not credible; and, (3) the ALJ rejected the 19 opinion of treating physician Jacqueline De Castro. 20 Defendant contests Plaintiff’s assessment, pointing out that: (1) The ALJ was within her 21 discretion to erode the number of positions available in the national economy to account for any 22 deviations from the DOT; (2) clear and convincing evidence in the record demonstrated that 23 Plaintiff was not credible; and, (3) the ALJ correctly rejected Dr. De Castro’s opinion because it 24 was inconsistent with her own notes and with other medical evidence in the record. 25 III. 26 THE DISABILITY DETERMINATION PROCESS To qualify for benefits under the Social Security Act, a plaintiff must establish that he or 27 she is unable to engage in substantial gainful activity due to a medically determinable physical or 28 mental impairment that has lasted or can be expected to last for a continuous period of not less 2 1 than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a 2 disability only if: 3 . . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 4 5 6 7 42 U.S.C. § 1382c(a)(3)(B). To achieve uniformity in the decision-making process, the Commissioner has established 8 9 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. § 10 404.1520(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive 11 finding that the claimant is or is not disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ must 12 consider objective medical evidence and opinion testimony. 20 C.F.R. § 404.1527, 404.1529. 13 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 14 substantial gainful activity during the period of alleged disability; (2) whether the claimant had 15 medically-determinable “severe” impairments;4 (3) whether these impairments meet or are 16 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 17 Appendix 1; (4) whether the claimant retained the residual functional capacity (“RFC”) to 18 perform her past relevant work;5 and (5) whether the claimant had the ability to perform other 19 jobs existing in significant numbers at the regional and national level. 20 C.F.R. § 404.1520(a)- 20 (f). 21 Using the Social Security Administration’s five-step sequential evaluation process, the 22 ALJ determined that Plaintiff did not meet the disability standard. AR 19-27. In particular, the 23 ALJ found that Plaintiff had not engaged in substantial gainful activity since December 4, 2008, 24 the date specified in her application. AR 21. Further, the ALJ identified status post C5-C7 25 4 26 27 28 “Severe” simply means that the impairment significantly limits the claimant’s physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1520(c). 5 Residual functional capacity captures what a claimant “can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545. “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th Cir. 2007). 3 1 anterior plate and screw fusion/fixation; central canal stenosis at C5-C6 and C6-C7; cervical 2 spondylotic myelopathy; cervical spondylosis; cervical spinal cord nerve root compression; and 3 hip bursitis as a medically determinable combination of impairments. AR 21. Nonetheless, the 4 ALJ determined that the severity of Plaintiff’s impairments did not meet or exceed any of the 5 listed impairments. AR 22. Based on a review of the entire record, the ALJ determined that Plaintiff had the RFC to: 6 [L]ift and carry up to 20 pounds occasionally and up to 10 pounds frequently, stand and walk up to six hours, and sit up to six hours in an eight-hour workday. She can frequently balance and crouch, and occasionally stoop, kneel, crawl, and climb ramps or stairs, but should never climb ladders, ropes, or scaffolds. The claimant is also limited to occasionally reaching overhead bilaterally. She is further limited to occasionally handling, fingering, and feeling with the left upper extremity, but can frequently perform these tasks with the right upper extremity. The claimant is capable of performing tasks which do not require repetitive rotation, extension, or flexion of the neck and she must avoid concentrated exposure to extreme temperatures, wetness, humidity, vibrations, and such workplace hazards as fast unprotected moving machinery, unprotected heights, and uneven or slippery terrain. 7 8 9 10 11 12 13 AR 22. Plaintiff was not capable of performing her past relevant work. AR 25. Plaintiff could, 14 however, perform work as a cashier, information clerk, or parking lot attendant, jobs that exist in 15 significant numbers in the national economy. AR 26. 16 IV. 17 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine 18 whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards. 19 See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 20 1071, 1074 (9th Cir. 2007). 21 “Substantial evidence means more than a scintilla but less than a preponderance.” 22 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which, 23 considering the record as a whole, a reasonable person might accept as adequate to support a 24 conclusion.” Id. “Where the evidence is susceptible to more than one rational interpretation, one 25 of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Id. 26 /// 27 /// 28 4 1 V. DISCUSSION 2 A. The ALJ’s Deviations from the DOT 3 At step five of the disability analysis, the Commissioner has the burden “to identify 4 specific jobs existing in substantial numbers in the national economy that [a] claimant can 5 perform despite [her] identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 6 1995); see also 20 C.F.R. § 404.1520(g). To do so, the ALJ first assesses a claimant’s “residual 7 functional capacity,” defined as the most that a claimant can do despite the “physical and mental 8 limitations” caused by his impairments and related symptoms. 20 C.F.R. § 404.1545. The ALJ 9 then considers potential occupations that the claimant may be able to perform by looking to the 10 DOT, which is the Social Security Administration’s “primary source of reliable job information” 11 regarding jobs that exist in the national economy. Zavalin v. Colvin, 778 F. 3d 842 (9th Cir. 2015) 12 citing Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); see also 20 C.F.R.§§ 404.1569; 13 404.1566(d). The DOT describes the requirements for each listed occupation, including both 14 physical and mental requirements. In addition to the DOT, the ALJ relies on the testimony of 15 vocational experts who testify about specific occupations that a claimant can perform in light of 16 her residual functional capacity. 20 C.F.R. § 404.1566(e); Valentine v. Comm’r Soc. Sec. Admin., 17 574 F.3d 685, 689 (9th Cir. 2009). Finally, to conclude the step five analysis, the ALJ determines 18 “whether, given the claimant’s [residual functional capacity], age, education, and work 19 experience, he actually can find some work in the national economy.” Valentine, 574 F.3d at 689; 20 see also 20 C.F.R. § 404.1520(g). 21 Plaintiff contends that the ALJ departed from the guidelines set by the DOT when the ALJ 22 found that Plaintiff could perform the job duties required for a cashier, information clerk, or 23 parking lot attendant. Specifically, Plaintiff contends that these jobs all require “frequent 24 reaching,” while Plaintiff’s RFC is limited to “occasionally reaching overhead bilaterally.” The 25 ALJ does not explain this discrepancy, Plaintiff argues, and has thus committed clear legal error. 26 27 28 i. Legal standards When a vocational expert testifies “about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that . . . 5 1 evidence and information provided in the [Dictionary of Occupational Titles].” Massachi v. 2 Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007), quoting SSR 00-4p (emphasis in original). If there is 3 a conflict between the vocational expert’s testimony and the requirements in the DOT, the ALJ 4 must “obtain a reasonable explanation” for that conflict. Id. at 1153. Any such explanation must 5 be supported by “persuasive evidence” in the record. Id. Thus, in examining vocational expert 6 testimony in conjunction with the DOT, an ALJ must “first determine whether a conflict exists.” 7 Id. “If it does, the ALJ must then determine whether the vocational expert’s explanation for the 8 conflict is reasonable and whether a basis exists for relying on the expert rather than the 9 Dictionary of Occupational Titles.” Id. Where an ALJ fails to ask if the vocational expert’s 10 11 12 testimony conflicts with the DOT, the ALJ has erred. Id. ii. Analysis The vocational expert testified that Plaintiff could perform the functions of a cashier, 13 information clerk, or parking lot attendant. AR 26. The only deviation from the DOT that Plaintiff 14 highlights is that all three jobs require frequent reaching, which the Plaintiff cannot do. Plaintiff is 15 correct that all three positions do, in fact, require the individual to engage in frequent reaching. 16 211.462-010 CASHIER II, DICOT 211.462-010; 237.367-018 INFORMATION CLERK, 17 DICOT 237.367-018; 915.473-010 PARKING-LOT ATTENDANT, DICOT 915.473-010. 18 Plaintiff is also correct that her RFC does not allow frequent reaching. AR 22. 19 In her decision, the ALJ does not acknowledge that there is an inconsistency with the 20 DOT. AR 26 (“Pursuant to SSR 00-4p, the undersigned has determined that the vocational 21 expert’s testimony is consistent with the information contained in the Dictionary of Occupational 22 Titles.”). Nor did the vocational expert at the hearing note any inconsistency. AR 74 (“Q. Okay. 23 Thank you very much. And is your testimony consistent with the DOT? A. Unless otherwise 24 indicated, yes.”). The ALJ thus never elicited any explanation, reasonable or otherwise, for the 25 vocational expert’s deviation from the DOT. 26 Defendant contends that Plaintiff waived this issue because she failed to raise it before the 27 ALJ. But this would effectively shift the burden of obtaining an explanation for the deviation to 28 Plaintiff, rather than the ALJ, which is contrary to the controlling case law. It would also place 6 1 Plaintiff in the difficult position at her hearing of objecting to vocational expert testimony based 2 on an RFC that the ALJ has not yet announced or formulated. Moreover, Plaintiff objected to the 3 discrepancy between the vocational expert’s testimony and the DOT in a letter to the Appeals 4 Council. AR 274 (“The Administrative Law Judge erred in finding that the vocational expert’s 5 testimony was consistent with the information contained in the DOT.”). The issue is not waived. 6 Murry v. Colvin, Case No. 1:14-cv-01349-JLT, 2016 WL 393859, at *5 (E.D. Cal. Feb. 2, 2016); 7 Davis v. Colvin, Case No. 3:14-cv-00271-PK, 2015 WL 2218386, at *7 (D. Or. May 9, 2015) (“I 8 find Meanel’s exhaustion preservation holding inapplicable to the present case. Here, Davis 9 simply argues that the ALJ erred in constructing his hypothetical for the VE and failed to 10 completely account for mental and social limitations described in a medical opinion to which the 11 ALJ assigned substantial weight in an opinion produced only after the hearing. The 12 Commissioner’s argument logically fails.”). 13 Defendant also contends that the vocational expert did not deviate from the DOT because 14 the expert eroded the number of positions that Plaintiff could perform in each of the designated 15 jobs to account for Plaintiff’s difficulties in reaching. Defendant is correct that the ALJ eroded the 16 number of jobs available in her decision. However, the hearing transcript makes clear that the 17 numbers were eroded based on: (1) Plaintiff’s need for a stool; and (2) Plaintiff’s “occasional 18 handling, fingering, and feeling with the left upper extremity” limitation. AR 74-75. There is no 19 indication that the numbers were eroded to account for the inability to frequently reach. Thus, 20 even if the ALJ could have eroded the available jobs to account for the vocational expert’s 21 deviation, she does not appear to have done so in this instance. The ALJ’s decision contains clear 22 legal error because it fails to offer a reasonable explanation for its departures from the DOT. 23 24 25 B. The ALJ’s Treatment of Jacqueline De Castro’s Medical Opinion i. Legal standards The weight given to medical opinions depends in part on whether they are offered by 26 treating, examining, or non-examining (reviewing) professionals. Holohan v. Massanari, 246 27 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, 28 more weight is given to the opinion of a treating professional, who has a greater opportunity to 7 1 know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 2 Cir. 1996). 3 An ALJ may reject the uncontradicted opinion of a treating or examining medical 4 professional only for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a 5 contradicted opinion of a treating or examining professional may be rejected for “specific and 6 legitimate” reasons. Lester, 81 F.3d at 830. While a treating professional’s opinion is generally 7 accorded superior weight, if it is contradicted by an examining professional’s opinion (when 8 supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews 9 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995), citing Magallanes v. Bowen, 881 F.2d 747, 751 10 (9th Cir.1989). The regulations require the ALJ to weigh the contradicted treating physician 11 opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001), but the ALJ need not give it any 12 weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 13 1111, 1113 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion 14 rejected); see also Magallanes, 881 F.2d at 751. 15 16 ii. Analysis Dr. De Castro was a treating physician who saw Plaintiff between July 2011 and April 17 2014. AR 518, 691. On December 14, 2012, Dr. De Castro filled out a medical source statement 18 that explained that Plaintiff could: lift/carry 3 pounds occasionally; stand/walk 1 hour in an 8 19 hour workday; sit for 30 minutes in an 8 hour workday; never climb, stoop, kneel, crouch, or 20 crawl; occasionally balance; never reach, handle, or finger with her left arm; occasionally reach 21 and handle with her right arm; and, frequently finger with her right arm. AR 556-557. The ALJ 22 rejected a portion of Dr. De Castro’s findings, saying that: 23 24 25 26 27 28 The undersigned discounts this opinion and gives it less than full weight because it is overreaching and without sufficient support from the objective medical evidence and clinical data. The undersigned agrees that the claimant has some exertional, postural and environmental limitations, but not to the extent opined by Dr. De Castro. For example, the extensive limitations assessed by Dr. De Castro are inconsistent with the other evidence, which showed full motor strength in the bilateral upper extremities, and a stable gait. The significant manipulative limitations are also inconsistent with the record, which indicated the claimant has no difficulty buttoning clothing and has had no changes in her handwriting. Furthermore, the opinion is inconsistent with the other medical opinions of record. 8 1 AR 24 (internal citations omitted). 2 Plaintiff contends that the ALJ erred in rejecting these portions of Dr. De Castro’s opinion 3 because the ALJ mischaracterized the other medical evidence in the record. Plaintiff claims that 4 the medical evidence in the record is actually supportive of Dr. De Castro’s opinion. Defendant 5 points to examinations by Parley Madsen, M.D., who found that Plaintiff had a normal gait and 6 full strength in her extremities. Defendant also points out that the ALJ rejected Dr. De Castro’s 7 opinion for its inconsistency with Plaintiff’s normal activities, including her ability to button 8 clothing. 9 An examining physician’s opinion can constitute substantial evidence to reject a treating 10 physician’s opinion if the examining physician’s opinion “rests on his own independent 11 examination.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Dr. Madsen conducted 12 physical examinations of Plaintiff on at least two occasions in 2013. AR 676-680, 681-687. In 13 both of these examinations, Dr. Madsen appears to have found results that are not entirely 14 consistent with the limitations Dr. De Castro assesses. For instance, Dr. Madsen observed that 15 Plaintiff was “able to ambulate without an assistive device,” had a “normal base to her gait,” and 16 had a stance within normal limits. AR 684. Although she had a decreased range of motion in her 17 upper extremities, Plaintiff had 5/5 motor strength in her arms and hands and had “fine motor 18 movements of the distal upper extremities [ ] within normal limits.” AR 685. These findings are 19 inconsistent with Dr. De Castro’s opinion that Plaintiff is unable to stand/walk for more than 1 20 hour and has significant limitations on her ability to reach, handle, and finger. 21 Dr. Madsen’s records do not appear to support Dr. De Castro’s conclusion regarding the 22 impairments and limitations that Plaintiff possesses. The ALJ had the authority to resolve this 23 conflict in arriving at her decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) 24 (“The ALJ is responsible for determining credibility and resolving conflicts in medical 25 testimony.”); see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) 26 (“Determining whether inconsistencies are material (or are in fact inconsistencies at all) and 27 whether certain factors are relevant to discount” medical opinions falls with the ALJ’s 28 responsibilities). “If the ALJ’s finding is supported by substantial evidence, the court ‘may not 9 1 engage in second-guessing.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Dr. 2 Madsen’s findings rest on physical examinations independent of Dr. De Castro’s. And, as 3 Defendant points out, many other medical providers (including Dr. De Castro) also found that 4 Plaintiff had a normal gait and full strength in her extremities. On February 27, 2014, for 5 example, Dr. De Castro conducted a physical examination and found that Plaintiff had 5/5 6 strength in her upper and lower extremities, as well as a stable gait. AR 697. It was thus within 7 the ALJ’s authority to give little weight to Dr. De Castro’s opinion based on its inconsistency 8 with the record. 9 Moreover, the ALJ rejected Dr. De Castro’s findings because they were inconsistent with 10 Plaintiff’s daily activities. A Plaintiff’s daily activities can also constitute a specific and 11 legitimate reason to reject a medical opinion where the daily activities are inconsistent with that 12 opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Although there is only one 13 reference in the record to Plaintiff’s ability to button clothing and her handwriting, that reference 14 does contradict Dr. De Castro’s opinion regarding Plaintiff’s fine motor skills. The ALJ was not 15 in error in giving Dr. De Castro little weight. 16 17 18 C. The ALJ’s Evaluation of Plaintiff’s Credibility i. Legal standards To evaluate the credibility of a claimant’s testimony regarding subjective complaints of 19 pain and other symptoms, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 20 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must determine whether the claimant has presented 21 objective medical evidence of an underlying impairment that could reasonably be expected to 22 produce the pain or other symptoms alleged. Id. The claimant is not required to show that the 23 impairment “could reasonably be expected to cause the severity of the symptom she has alleged; 24 she need only show that it could reasonably have caused some degree of the symptom.” Id. 25 (emphasis added). If the claimant meets the first test and there is no evidence of malingering, the 26 ALJ can only reject the claimant's testimony regarding the severity of the symptoms for “specific, 27 clear and convincing reasons” that are supported by substantial evidence. Id. 28 An ALJ can consider a variety of factors in assessing a claimant’s credibility, including: 10 3 (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 4 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks 5 omitted). 1 2 6 Other factors can include a claimant’s work record and testimony from physicians and 7 third parties concerning the nature, severity, and effect of the symptoms of which the claimant 8 complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). An ALJ can only rely 9 on an inconsistency between a claimant’s testimony and the objective medical evidence to reject 10 that testimony where the ALJ specifies which “complaints are contradicted by what clinical 11 observations.” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999). 12 An ALJ properly discounts credibility if she makes specific credibility findings that are properly 13 supported by the record and sufficiently specific to ensure a reviewing court that she did not 14 “arbitrarily discredit” the testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). 15 16 17 18 19 20 21 22 23 24 25 26 27 ii. Analysis The ALJ’s decision questions Plaintiff’s credibility with respect to the severity of her symptoms. AR 24. In particular, the ALJ found that: In this case, the claimant’s allegations are not fully credible. For example, she testified to having trouble reading due to dyslexia, but that is unsupported by the medical evidence of record. The claimant further reported her ability to follow instructions and complete tasks is “affected,” but that is inconsistent with the record, which showed she stayed on task during an examination and followed complex commands. She also alleged her condition worsened in December 2012, but the record does not support this. In fact, as recently as August 5, 2013, physicians recommended that continue with only conservative (non-surgical) treatment. These inconsistent and unsupported statements significantly detract from the credibility of her allegations. The claimant testified and reported having significant physical limitations, namely with regard to her neck and upper extremities, but her daily activities undermine the credibility of these allegations. For example, she admitted shampooing her hair every three days and such a task requires overhead reaching. Furthermore, she also indicated she did not require assistance with personal needs. In addition, a treatment report showed she has no trouble buttoning her clothing and she has exhibited no changes in her handwriting. These additional inconsistencies further detract from the credibility of her allegations, namely with regard to the allegation she is unable to work. 28 11 1 AR 25 (internal citations omitted). The ALJ is thus required to provide “specific, clear and 2 convincing reasons” for finding Plaintiff not credible. Vasquez, 572 F.3d at 591. 3 Plaintiff challenges the ALJ’s findings with respect to Plaintiff’s daily activities, saying 4 that each of the specific daily activities noted by the ALJ was only accomplished with significant 5 accommodations. While it is true that Plaintiff shampoos her own hair, for instance, she does so 6 only with some difficulty. AR 56. Defendant points out that Plaintiff’s daily activities extend to a 7 variety of different activities, including the ability to care for pets, perform household chores, 8 drive a car, and shop. AR 244-247, 41-42. 9 A plaintiff’s daily activities or inconsistencies in testimony can constitute a reason to find 10 that she lacks credibility. Tommasetti, 533 F.3d at 1039. Plaintiff does acknowledge that she cares 11 for her two Chihuahuas and is capable of driving (albeit relatively short distances). AR 41-42, 12 245. She also performs household chores such as dusting and laundry. AR 246. The record does, 13 however, substantiate Plaintiff’s argument that each of the activities cited by the ALJ was 14 performed only with significant caveats. Plaintiff feeds the Chihuahuas, for example, but her 15 husband assists when she is in pain. AR 245. She is capable of shopping, but she generally goes 16 only with her husband. AR 247. These accommodations undercut the ALJ’s finding that Plaintiff 17 lacks credibility because of her daily activities. 18 On the other hand, the ALJ is correct that some of Plaintiff’s statements are not supported 19 by the medical record. Plaintiff’s contention that she has limited arm mobility or use of her 20 fingers (AR 47), for example, is contradicted by a number of physical examinations. David 21 Broderick, M.D., for instance, who examined the Plaintiff on February 6, 2010, found Plaintiff’s 22 statement that she lacked range of motion in her left arm was not entirely accurate. AR 652 23 (“During the examination she has decided posturing of the left elbow, keeping it flexed, but with 24 distraction she does have full left elbow range of motion. There is significant symptom 25 magnification seen at the time of this evaluation.”) (emphasis added). Dr. Broderick also 26 suggested that the objective evidence did not support Plaintiff’s assertions. AR 653 (“The 27 applicant’s clinical examination is unremarkable . . . Her MRI scan of the left shoulder was 28 unremarkable.”). 12 1 The Court notes, however, that an ALJ may not find a plaintiff not credible solely because 2 of a lack of corroborating evidence in the record. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 3 1991) (“an adjudicator may not reject a claimant’s subjective complaints based solely on the lack 4 of objective medical evidence to fully corroborate the alleged severity of pain”). Thus, while the 5 Plaintiff’s allegations do appear to be less than entirely consistent with the medical evidence, the 6 Court is unable to find that the ALJ has offered clear and convincing reasons to find Plaintiff not 7 credible. Because the case will be remanded for the above identified issue with the vocational 8 expert’s testimony, the ALJ may also wish to review the record with respect to Plaintiff’s 9 credibility and further articulate her reasoning. 10 11 VI. CONCLUSION Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 12 substantial evidence in the record or free of clear legal error. Accordingly, this Court GRANTS 13 Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security and the 14 case is REMANDED to the Social Security Administration. On remand, the Social Security 15 Administration shall develop the record with respect to the vocational expert’s testimony and the 16 DOT. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Lorraine Avila 17 and against Defendant Nancy A. Berryhill, Commissioner of Social Security. 18 IT IS SO ORDERED. 19 20 21 Dated: July 6, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 13