Rodriguez v. Saul, No. 1:2018cv03201 - Document 19 (E.D. Wash. 2019)

Court Description: ORDER Granting, In Part, 13 Plaintiff's Motion for Summary Judgment and Remanding for Additional Proceedings. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Rodriguez v. Saul Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Sep 11, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 MELISSA R., 10 No. 1:18-CV-03201-JTR Plaintiff, 11 v. 12 13 14 15 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,1 16 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 19 20 21 22 23 24 No. 13, 17. Attorney D. James Tree represents Melissa R. (Plaintiff); Special Assistant United States Attorney Lars Joseph Nelson represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 3. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 REMANDS the matter to the Commissioner for additional proceedings pursuant to 2 42 U.S.C. § 405(g). 3 4 JURISDICTION Plaintiff filed applications for Disability Insurance Benefits and 5 Supplemental Security Income on November 9, 2013 and May 29, 2014, 6 respectively, alleging disability since November 15, 2012, due to bipolar disorder, 7 PTSD, arthritis, nerve pain in her right leg, tenosynovitis in her right wrist, and 8 swelling of her left knee. Tr. 88, 286. The applications were denied initially and 9 upon reconsideration. Tr. 144-51, 156-66. Administrative Law Judge (ALJ) 10 Stephanie Martz held a hearing on September 7, 2017, Tr. 37-85, and issued an 11 unfavorable decision on November 24, 2017, Tr. 15-30. Plaintiff requested review 12 from the Appeals Council. Tr. 274-75. The Appeals Council denied Plaintiff’s 13 request for review on August 16, 2018. Tr. 1-5. The ALJ’s November 2017 14 decision thus became the final decision of the Commissioner, which is appealable 15 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 16 judicial review on October 16, 2018. ECF No. 1, 5. STATEMENT OF FACTS 17 18 Plaintiff was born in 1976 and was 36 years old as of her alleged onset date. 19 Tr. 29. She has a GED and an Associate’s degree. Tr. 48. Her work history has 20 consisted of a number of short-term jobs, including fast food, care giving, sales, 21 and general labor. Tr. 28, 324. She had a substance abuse problem until attending 22 chemical dependency treatment in early 2014. Tr. 537-39. Over the duration of 23 her claim, she has received treatment for her mental health conditions, in addition 24 to undergoing two knee surgeries and carpal tunnel release surgery. Tr. 1230, 25 1233, 1236. 26 27 28 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 2 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 3 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 4 only if it is not supported by substantial evidence or if it is based on legal error. 5 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 6 defined as being more than a mere scintilla, but less than a preponderance. Id. at 7 1098. Put another way, substantial evidence is such relevant evidence as a 8 reasonable mind might accept as adequate to support a conclusion. Richardson v. 9 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 10 rational interpretation, the Court may not substitute its judgment for that of the 11 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 12 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 13 administrative findings, or if conflicting evidence supports a finding of either 14 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 15 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 16 supported by substantial evidence will be set aside if the proper legal standards 17 were not applied in weighing the evidence and making the decision. Brawner v. 18 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 19 20 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 22 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 23 four, the burden of proof rests upon the claimant to establish a prima facie case of 24 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 25 met once a claimant establishes that a physical or mental impairment prevents the 26 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 27 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 28 to step five, and the burden shifts to the Commissioner to show (1) the claimant ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 can make an adjustment to other work; and (2) the claimant can perform specific 2 jobs that exist in the national economy. Batson v. Commissioner of Social Sec. 3 Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 4 adjustment to other work in the national economy, the claimant will be found 5 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 6 7 8 9 10 ADMINISTRATIVE DECISION On November 24, 2017, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 18. 11 At step two, the ALJ determined Plaintiff had the following severe 12 impairments: bipolar disorder versus depression, personality disorder, substance 13 abuse disorder, bilateral knee osteoarthritis, status post internal fixation of the left 14 medial tibial plateau fracture and left knee arthroscopy with partial medial 15 meniscectomy, status post right knee arthroscopy, obesity, seronegative arthritis, 16 and status post right carpal tunnel release. Id. 17 At step three, the ALJ found Plaintiff did not have an impairment or 18 combination of impairments that met or medically equaled the severity of one of 19 the listed impairments. Tr. 18-20. 20 21 22 23 24 25 26 27 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found she could perform light exertion level work with the following limitations: she can stand and/or walk up to 4 hours in an 8-hour workday with regular breaks for about 1 hour at a time. She has unlimited ability to push/pull within these exertional limitations. She can occasionally balance, stoop, kneel, crouch/squat, and crawl but cannot climb stairs, ladders, or hills. She needs to avoid concentrated exposure to extreme cold and hazards. She can understand, remember, and carry out simple and detailed tasks and have occasional or superficial contact with coworkers and should work independently, not on team or 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 tandem tasks. She should work away from the general public. She needs a routine and predictable work environment. 1 2 Tr. 20. 3 4 At step four, the ALJ found Plaintiff was unable to perform her past relevant work. Tr. 28. 5 6 7 8 9 At step five, the ALJ determined that, based on the testimony of the vocational expert, and considering Plaintiff’s age, education, work experience, and RFC, she was capable of making a successful adjustment to other work that existed in significant numbers in the national economy, including the jobs of router, small products assembler, and inspector hand packager. Tr. 29-30. 10 11 12 The ALJ thus concluded Plaintiff was not under a disability within the meaning of the Social Security Act at any time from the alleged onset date, November 15, 2012, through the date of the decision, November 24, 2017. Tr. 30. 13 ISSUES 14 15 16 The question presented is whether substantial evidence supports the ALJ’s decision denying benefits and, if so, whether that decision is based on proper legal standards. 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff contends the ALJ erred by (1) failing to assess any manipulative limitations in the RFC; (2) failing to properly assess Listings 1.02 and 1.06; (3) improperly assessing the medical opinion evidence; and (4) not fully crediting Plaintiff’s subjective allegations. DISCUSSION 1. Manipulative limitations Plaintiff argues the ALJ erred in failing to include any limitations in the RFC to account for Plaintiff’s severe right carpal tunnel syndrome. ECF No. 13 at 4-5. At step two of the sequential evaluation process, the ALJ considers and identifies the claimant’s severe impairments, defined as those impairments that significantly limit the claimant’s physical or mental ability to do basic work ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 activities. 20 C.F.R. §§ 404.1520(c), 415.920(c). In formulating the residual 2 functional capacity, the ALJ must consider the claimant’s remaining ability to do 3 physical and mental work activities on a sustained basis, considering all of the 4 claimant’s impairments. 20 C.F.R. §§ 404.1545, 416.945. The residual functional 5 capacity is the most the claimant can still do despite her limitations. Id.; see also 6 Social Security Ruling 96-8p. 7 At step two, the ALJ found one of Plaintiff’s severe impairments to be 8 “status post right carpal tunnel release,” acknowledging that “the record confirms 9 the above impairments significantly limit the claimant’s ability to perform basic 10 work activities.” Tr. 18. However, the RFC contains no limitations on Plaintiff’s 11 ability to use her right hand for manipulative activities. Tr. 20. The RFC therefore 12 appears inconsistent with the ALJ finding this impairment to be severe. 13 Defendant argues the ALJ reasonably excluded hand limitations from the 14 RFC because Plaintiff’s right hand and wrist issues resolved after her carpal tunnel 15 release surgery. ECF No. 17 at 4-5. This argument fails to resolve the internal 16 inconsistency in the ALJ’s decision. If an impairment is found severe, by 17 definition it causes some limitations on the individual’s ability to perform work 18 activities, and thus must be accounted for in the RFC. If the ALJ determined 19 Plaintiff’s carpal tunnel syndrome caused no functional limitations, then she should 20 have found it to be a non-severe impairment. 21 Furthermore, Plaintiff did not undergo carpal tunnel surgery until January 22 2015, over two years after her alleged onset date. Tr. 1236. The relevant period 23 for this claim began with Plaintiff’s alleged onset date in November 2012. In 24 September 2012, prior to the alleged onset date, Plaintiff reported having had right 25 wrist pain for over a year. Tr. 484. She continued to periodically report 26 difficulties with her right hand and wrist over the next two years, with exams 27 showing diminished strength and nerve conduction studies demonstrating moderate 28 carpal tunnel syndrome. Tr. 443, 475, 653, 1172. She reported worsening ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 symptoms in early January 2015, Tr. 1179, and finally had release surgery at the 2 end of January 2015. Tr. 1236. Defendant’s argument that the record 3 demonstrates resolution of this impairment after the surgery does not cure the 4 ALJ’s failure to account for it in the RFC prior to the surgery. An ALJ must 5 consider all evidence, including changes to a claimant’s conditions with treatment 6 or the passage of time, in determining whether a finding of disability is or was 7 warranted for any of the relevant period. A condition need not be permanent to be 8 severe or disabling; it simply “must have lasted or be expected to last for a 9 continuous period of at least 12 months.” 20 C.F.R. §§404.1509, 416.909. In 10 some cases, evidence may support the establishment of a closed period of 11 disability, when the evidence demonstrates medical improvement. See generally, 12 Attmore v. Colvin, 827 F.3d 872 (9th Cir. 2016). On remand, the ALJ shall 13 reconsider the evidence and determine whether Plaintiff’s carpal tunnel syndrome 14 caused any work-related limitations, and if so, for how long. 15 2. 16 Medical opinion evidence Plaintiff argues the ALJ erred by improperly assessing the medical opinion 17 evidence. ECF No. 13 at 8-16. Specifically, she asserts the ALJ improperly 18 rejected opinions from two consultative examiners for the Washington State 19 Department of Social and Health Services, Dr. Carolyn Jackson and Dr. Thomas 20 Genthe. Id. 21 When an examining physician’s opinion is contradicted by another 22 physician, the ALJ is required to provide “specific and legitimate reasons” to reject 23 the opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The specific 24 and legitimate standard can be met by the ALJ setting out a detailed and thorough 25 summary of the facts and conflicting clinical evidence, stating her interpretation 26 thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 27 1989). The ALJ is required to do more than offer her conclusions, she “must set 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 forth [her] interpretations and explain why they, rather than the doctors’, are 2 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 3 a. Dr. Jackson 4 Plaintiff underwent a consultative exam with Dr. Carolyn Jackson on August 5 12, 2015. Tr. 762-74. Dr. Jackson diagnosed Plaintiff with left knee osteoarthritis, 6 right knee pain post-surgery, history of right tibial shaft fracture, low back pain, 7 depression, hypertension, and history of meth abuse in remission. Tr. 763. Based 8 on the severity of these impairments, Dr. Jackson opined Plaintiff was severely 9 limited and unable to meet the demands of even sedentary work. Tr. 764. 10 The ALJ gave this opinion little weight, finding other treatment notes to 11 indicate improvement in Plaintiff’s knee pain with injections, and that bilateral 12 knee surgeries performed “shortly after this visit” were successful in relieving 13 symptoms. Tr. 26. The ALJ concluded, “while the claimant had a short period of 14 more significant knee problems, the problems substantially improved after the 15 surgeries, rendering this assessment less persuasive.” Id. 16 Plaintiff asserts the ALJ erred in her analysis because the record did not 17 support the finding of contemporaneous improvement with injections, and the 18 bilateral knee surgeries occurred 11 and 16 months after the opinion was given, 19 indicating the duration was much longer than the ALJ implied. ECF No. 13 at 10.2 20 21 22 2 Plaintiff also asserts the ALJ erred by failing to offer any reasons for 23 discounting Dr. Jackson’s limitations as they related to Plaintiff’s depression. ECF 24 No. 13 at 9. However, Dr. Jackson did not assess any work-related functions 25 pertaining to depression. Tr. 762-64. An ALJ need only “explain why significant 26 probative evidence has been rejected.” Vincent v. Heckler, 739 F.2d 1393, 1394- 27 95 (9th Cir. 1984). Because Dr. Jackson did not opine as to any limitations related 28 to depression, there was no opinion on this subject for the ALJ to discuss. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 Defendant argues the ALJ’s finding of improvement is supported by substantial 2 evidence. ECF No. 17 at 14-17. 3 The consistency of an opinion with the medical record in general is a 4 relevant factor for an ALJ to consider. 20 C.F.R. §§ 404.1527(c)(4), 5 416.927(c)(4). However, a review of the record shows that the ALJ’s analysis is 6 not supported by substantial evidence. 7 The context of the cited records does not demonstrate any sustained 8 improvement from injections. The ALJ referenced Exhibit 18F/112 (contained in 9 this record at Tr. 783). The record reflects a July 23, 2015 office visit with Dr. 10 Kennedy, at which a third and final injection was administered to Plaintiff’s knee. 11 Plaintiff reported the first two injections “helped a little bit, but not as much as she 12 would have liked.” Tr. 783. Six days later, at her exam with Dr. Jackson, Plaintiff 13 reported the injection was “not working well.” Tr. 768. The following day 14 Plaintiff returned to Dr. Kennedy’s office, and as the Visco supplementation had 15 not worked well in her left knee, they proceeded with prescribing an unloading 16 knee brace for her right knee. Tr. 786. Records following this all indicate the 17 injections had not worked well and that she had “failed” conservative treatments. 18 Tr. 926, 934, 1043, 1204. In August 2015 Plaintiff reported receiving relief from 19 her right leg pain with her unloader brace, but continued to report left knee pain. 20 Tr. 1198. In December 2015 she reported her knee pain was stable and she began 21 walking a lot more without her brace, but in January she began using it again due 22 to worsening pain. Tr. 849, 869. The ALJ’s characterization of the record showing 23 “improvement with injection and treatment” is not supported by substantial 24 evidence. 25 Similarly, the ALJ’s finding that Dr. Jackson’s opinion was less persuasive 26 due to Plaintiff substantially improving after surgery is not a specific and 27 legitimate reason for discounting the opinion. Plaintiff began reporting significant 28 knee pain in mid-2014. Tr. 587, 590, 648, 653. In the August 2015 opinion, Dr. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 Jackson stated Plaintiff had been markedly to severely limited by her impairments, 2 including her knee problems, since mid-2014. Tr. 762. Plaintiff did not undergo 3 her left knee surgery until July 2016, Tr. 1233, followed by her right knee surgery 4 in December 2016. Tr. 1230. The ALJ’s characterization of Plaintiff having “a 5 short period of more significant knee problems” and her surgery as “shortly after 6 this visit with Dr. Jackson” is not consistent with the record. Dr. Jackson’s opinion 7 applied to Plaintiff’s condition for more than one year, and Plaintiff did not 8 experience significant improvement from surgery for almost a year after the 9 opinion was given. As discussed in the preceding section, the ALJ must consider 10 the entire record, including periods of worsening or improving conditions, as well 11 as the possibility of a closed period of disability. 12 13 On remand, the ALJ shall reconsider Dr. Jackson’s opinion in the context of the entire record. 14 b. Dr. Genthe 15 Plaintiff underwent a consultative psychological exam with Dr. Thomas 16 Genthe in April 2014. Tr. 561-65. Dr. Genthe diagnosed borderline personality 17 disorder, major depressive disorder with anxious distress, and substance use 18 disorder. Tr. 563. He found Plaintiff was severely impaired in her ability to 19 communicate and perform effectively in a work setting, complete a normal 20 workweek without interruptions from psychologically based symptoms, and 21 maintain appropriate behavior in a work setting. Tr. 564. He also noted several 22 other mild and moderate limitations. Id. He concluded she was unlikely to 23 function adequately in a work setting until her psychological symptoms were 24 managed more effectively. Tr. 565. 25 The ALJ gave this opinion little weight, noting Plaintiff had primarily 26 complained of physical problems at this appointment and had demonstrated 27 improvement in her mental health following this exam. Tr. 26-27. The ALJ 28 additionally found Dr. Genthe’s opinion that Plaintiff was “unlikely to function ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 adequately” was vague, and that the opinion did not meet the duration requirement. 2 Tr. 27. Plaintiff asserts the record does not support the ALJ’s interpretation of the 3 4 report and the accompanying mental health treatment records. ECF No. 13 at 12- 5 16. Defendant argues the ALJ’s interpretation of the record is supported by 6 substantial evidence. ECF No. 17-20. Because this claim is being remanded on 7 other bases, the ALJ will reconsider the medical record as a whole, including Dr. 8 Genthe’s opinion. 9 3. 10 11 Plaintiff’s subjective statements Plaintiff contends the ALJ erred by improperly rejecting her subjective statements. ECF No. 13 at 16-21. 12 It is the province of the ALJ to make credibility determinations. Andrews v. 13 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 14 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 15 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 16 medical impairment, the ALJ may not discredit testimony as to the severity of an 17 impairment merely because it is unsupported by medical evidence. Reddick v. 18 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 19 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 20 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 21 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 22 insufficient: rather the ALJ must identify what testimony is not credible and what 23 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 24 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 25 The ALJ concluded Plaintiff’s medically determinable impairments could 26 reasonably be expected to produce her alleged symptoms; however, Plaintiff’s 27 statements concerning the intensity, persistence and limiting effects of those 28 symptoms were not entirely consistent with the medical evidence and other ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 evidence in the record. Tr. 21. The ALJ offered the following reasons for 2 disregarding Plaintiff’s subjective complaints: (1) Plaintiff made inconsistent 3 statements about her symptoms; (2) her testimony was not consistent with medical 4 evidence of record; (3) she had long periods with no mental health treatment; (4) 5 she was able to care for her own activities of daily living. Tr. 21-26. 6 An ALJ may consider inconsistent statements by a claimant in assessing the 7 reliability of her reports. Popa v. Berryhill, 872 F.3d 901, 906-07 (9th Cir. 2017); 8 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). However, merely 9 asserting that a claimant made inconsistent statements without identifying what the 10 inconsistencies are does not constitute a clear and convincing reason. The ALJ 11 stated Plaintiff offered inconsistent statements about her symptoms, but failed to 12 identify any actual inconsistencies in the record. The fact that an individual 13 experienced fluctuations in her symptoms over a five year period is insufficient to 14 establish inconsistency that calls into question the reliability of her reports. 15 A claimant’s daily activities may support an adverse credibility finding if the 16 activities contradict her other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th 17 Cir. 2007). However, the mere fact that a claimant is capable of performing some 18 basic daily activities needed for everyday survival does not necessarily detract 19 from her overall credibility. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 20 2014); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). The Ninth Circuit 21 has repeatedly found that the ability to perform some basic activities is not 22 necessarily inconsistent with disability: 23 24 25 26 We have repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day. 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 Garrison, 759 F.3d at 1016; see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 2 1989) (“[M]any home activities are not easily transferable to what may be the more 3 grueling environment of the workplace, where it might be impossible to 4 periodically rest or take medication.”). 5 The ALJ failed to identify any specific daily activities that she found to be 6 inconsistent with Plaintiff’s allegations of pain and other limitations. In the five- 7 page summary of the medical evidence, the ALJ only vaguely refers to Plaintiff’s 8 ability to “care for her own activities of daily living” without identifying what 9 those activities consisted of.3 While an ALJ may consider the fact that the extent of treatment sought by an 10 11 individual is not comparable to the degree of limitation alleged, she must first 12 consider possible reasons the claimant may not have sought more treatment. 13 Social Security Ruling 16-3p. Such reasons can include lack of resources or access 14 to treatment, symptoms reaching a tolerable level, the claimant being able to 15 structure her day to avoid aggravating symptoms, or the conditions themselves 16 The ALJ makes one reference to Plaintiff “babysitting five young children daily” 17 3 18 in June 2014. Tr. 25. However, the record shows only that Plaintiff was 19 complaining about her sister-in-law “dumping” her children on Plaintiff, who then 20 had to be in charge of the children when her own mother was away. Tr. 625-26. 21 Plaintiff found the stress and frustration of this overwhelming. Tr. 625. There is 22 no evidence of the ages of the children, what Plaintiff’s responsibilities were, how 23 often this happened, or how long this arrangement continued. Within two weeks of 24 reporting this event to her counselor, Plaintiff had moved out of her parents’ home. 25 Tr. 620. This minimal evidence does not constitute substantial evidence of 26 Plaintiff’s daily activities. See Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 27 2017) (“the mere fact that she cares for small children does not constitute an 28 adequately specific conflict with her reported limitations.”). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 interfering with seeking more treatment. Id. The ALJ did not discuss whether she 2 considered any of these factors before finding Plaintiff’s level of mental health 3 treatment to be inconsistent with the severity alleged. There are some indications 4 in the record that Plaintiff’s physical impairments overwhelmed her and interfered 5 with her ability to attend mental health counseling more frequently, and at least 6 once Plaintiff indicated a desire to get back into counseling and was slowly taking 7 the necessary steps. Tr. 614-17, 757. The Ninth Circuit has noted that “it is 8 questionable practice to chastise one with a mental impairment for the exercise of 9 poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 10 (9th Cir. 1996). An ALJ may cite inconsistencies between a claimant’s testimony and the 11 12 objective medical evidence in discounting the claimant’s symptom statements. 13 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). But this 14 cannot be the only reason provided by the ALJ. See Lester, 81 F.3d at 834 (the 15 ALJ may not discredit the claimant’s testimony as to subjective symptoms merely 16 because they are unsupported by objective evidence). “[A]n ALJ does not provide 17 specific, clear, and convincing reasons for rejecting a claimant’s testimony by 18 simply reciting the medical evidence in support of his or her residual functional 19 capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 20 2015). Furthermore, the treatment records must be viewed in light of the overall 21 diagnostic record. See Holohan v. Massanari, 246 F.3d 1195, 1205-1208 (9th Cir. 22 2001); Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008). Because none of the ALJ’s other reasons satisfy the clear and convincing 23 24 standard, a lack of support from the medical records alone is an insufficient basis. 25 Furthermore, given the above-mentioned errors in the ALJ’s interpretation of the 26 record in context, reconsideration of Plaintiff’s subjective complaints is warranted. 27 4. Step three findings 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14 1 2 3 Plaintiff argues the ALJ erred at step three when she failed to explain why Plaintiff’s conditions did not meet listing 1.02A or 1.06. ECF No. 13 at 5-8. A claimant is considered disabled at step three when her impairment meets 4 the durational requirement or equals an impairment listed in Appendix 1. 20 5 C.F.R. §§ 404.1520(d), 416.920(d). “An ALJ must evaluate the relevant evidence 6 before concluding that a claimant’s impairments do not meet or equal a listed 7 impairment. A boilerplate finding is insufficient to support a conclusion that a 8 claimant’s impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 9 2001). However, the ALJ is not required to state why a claimant fails to satisfy 10 every criteria of the listing if they adequately summarize and evaluate the 11 evidence. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir.1990); Lewis, 12 236 F.3d at 512. 13 At step three the ALJ found Plaintiff’s knee impairment and leg fracture did 14 not meet the criteria for Listing 1.02A or 1.06 “because she did not lose the ability 15 to ambulate effectively, as defined in 1.00B2b.” Tr. 19. An inability to ambulate 16 effectively means: 17 18 19 20 21 22 an extreme limitation of the ability to walk, i.e., an impairment(s) that interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. 23 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 1.00B2b. The definition goes 24 on to give examples of abilities that demonstrate effective ambulation. Id. 25 Plaintiff argues the ALJ failed to explain why Plaintiff’s knee condition does 26 not meet the criteria. Plaintiff identifies a number of records that indicate she had 27 impairment of her gait and needed various assistive devices. ECF No. 13 at 5-8. 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15 1 Because this claim is being remanded on other bases, the ALJ is directed to 2 complete the five-step evaluation process and offer an explanation for her findings 3 at each step of the process. CONCLUSION 4 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 5 6 payment of benefits. The Court has the discretion to remand the case for additional 7 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 8 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 9 further administrative proceedings would serve no useful purpose. Id. Remand is 10 appropriate when additional administrative proceedings could remedy defects. 11 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 12 finds that further development is necessary for a proper determination to be made. The ALJ’s RFC determination is not supported by substantial evidence in 13 14 this case and must be reevaluated. On remand, the ALJ shall reevaluate the 15 medical evidence and Plaintiff’s subjective complaints, formulate a new RFC, 16 obtain supplemental testimony from a vocational expert, if necessary, and take into 17 consideration any other evidence or testimony relevant to Plaintiff’s disability 18 claim. 19 Accordingly, IT IS ORDERED: 20 1. 21 22 23 24 25 26 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED, IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 4. An application for attorney fees may be filed by separate motion. 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 16 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 3 the file shall be CLOSED. 4 IT IS SO ORDERED. 5 DATED September 11, 2019. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 17

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