1 May 19, 2020 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 ) 7 CAROLYN D. H-C. ) No. 1:19-CV-3247-LRS ) 8 Plaintiff, ) ORDER GRANTING ) PLAINTIFF’S MOTION FOR 9 vs. ) SUMMARY JUDGMENT, ) INTER ALIA 10 ) COMMISSIONER OF SOCIAL ) 11 SECURITY, ) ) 12 ) Defendant. ) 13 ______________________________ ) 14 BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment 15 (ECF No. 15) and the Defendant's Motion For Summary Judgment (ECF No. 17). 16 17 JURISDICTION 18 Carolyn D. H-C., Plaintiff, applied for Title II Disability Insurance benefits 19 (DIB) on November 13, 2014, and for Title XVI Supplemental Security Income 20 benefits (SSI) on April 21, 2015. The applications were denied initially and on 21 reconsideration. Plaintiff timely requested a hearing which was held on June 12, 22 2018 before Administrative Law Judge (ALJ) C. Howard Prinsloo. Plaintiff testified 23 at the hearing, as did Vocational Expert (VE) Merrill Cohen. On September 6, 2018, 24 the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council 25 denied a request for review of the ALJ’s decision, making that decision the 26 Commissioner’s final decision subject to judicial review. The Commissioner’s final 27 decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 1 STATEMENT OF FACTS 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 60 years old. She has past 5 relevant work experience as an aircraft structure assembler, order filler, animal 6 caretaker, aircraft production painter, laborer, and assembly line inspector. Plaintiff 7 alleges disability since May 15, 2014, on which date she was 56 years old. Plaintiff’s 8 date last insured for Title II benefits was December 31, 2019. 9 10 STANDARD OF REVIEW 11 "The [Commissioner's] determination that a claimant is not disabled will be 12 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 13 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 14 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 15 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 16 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 17 1988). "It means such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 19 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 20 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 21 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 22 On review, the court considers the record as a whole, not just the evidence supporting 23 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 24 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 25 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 26 Richardson, 402 U.S. at 400. If evidence supports more than one rational 27 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 28 F.2d 577, 579 (9th Cir. 1984). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 A decision supported by substantial evidence will still be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 4 1987). 5 6 ISSUES 7 Plaintiff argues the ALJ erred in: 1) rejecting the opinions of Plaintiff’s 8 treating physician, Chang Shin, M.D.; 2) failing to develop the record to ascertain 9 whether Plaintiff’s headaches constitute a condition equaling Listing 11.02; 3) 10 discounting Plaintiff’s testimony about her symptoms and limitations; and 4) finding 11 that Plaintiff was capable of performing her past relevant work as an order filler. 12 13 DISCUSSION 14 SEQUENTIAL EVALUATION PROCESS 15 The Social Security Act defines "disability" as the "inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or can 18 be expected to last for a continuous period of not less than twelve months." 42 19 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 20 to be under a disability only if her impairments are of such severity that the claimant 21 is not only unable to do her previous work but cannot, considering her age, education 22 and work experiences, engage in any other substantial gainful work which exists in 23 the national economy. Id. 24 The Commissioner has established a five-step sequential evaluation process for 25 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 26 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 27 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 28 C.F.R. §§ 404.1520(a)(4)(I) and 416.920(a)(4)(I). If she is not, the decision-maker ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 proceeds to step two, which determines whether the claimant has a medically severe 2 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 3 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 4 of impairments, the disability claim is denied. If the impairment is severe, the 5 evaluation proceeds to the third step, which compares the claimant's impairment with 6 a number of listed impairments acknowledged by the Commissioner to be so severe 7 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 8 416.920(a)(4)(iii); 20 C.F.R.
Free access — add to your briefcase to read the full text and ask questions with AI
1 May 19, 2020 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 ) 7 CAROLYN D. H-C. ) No. 1:19-CV-3247-LRS ) 8 Plaintiff, ) ORDER GRANTING ) PLAINTIFF’S MOTION FOR 9 vs. ) SUMMARY JUDGMENT, ) INTER ALIA 10 ) COMMISSIONER OF SOCIAL ) 11 SECURITY, ) ) 12 ) Defendant. ) 13 ______________________________ ) 14 BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment 15 (ECF No. 15) and the Defendant's Motion For Summary Judgment (ECF No. 17). 16 17 JURISDICTION 18 Carolyn D. H-C., Plaintiff, applied for Title II Disability Insurance benefits 19 (DIB) on November 13, 2014, and for Title XVI Supplemental Security Income 20 benefits (SSI) on April 21, 2015. The applications were denied initially and on 21 reconsideration. Plaintiff timely requested a hearing which was held on June 12, 22 2018 before Administrative Law Judge (ALJ) C. Howard Prinsloo. Plaintiff testified 23 at the hearing, as did Vocational Expert (VE) Merrill Cohen. On September 6, 2018, 24 the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council 25 denied a request for review of the ALJ’s decision, making that decision the 26 Commissioner’s final decision subject to judicial review. The Commissioner’s final 27 decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 1 STATEMENT OF FACTS 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 60 years old. She has past 5 relevant work experience as an aircraft structure assembler, order filler, animal 6 caretaker, aircraft production painter, laborer, and assembly line inspector. Plaintiff 7 alleges disability since May 15, 2014, on which date she was 56 years old. Plaintiff’s 8 date last insured for Title II benefits was December 31, 2019. 9 10 STANDARD OF REVIEW 11 "The [Commissioner's] determination that a claimant is not disabled will be 12 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 13 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 14 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 15 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 16 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 17 1988). "It means such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 19 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 20 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 21 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 22 On review, the court considers the record as a whole, not just the evidence supporting 23 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 24 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 25 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 26 Richardson, 402 U.S. at 400. If evidence supports more than one rational 27 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 28 F.2d 577, 579 (9th Cir. 1984). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 A decision supported by substantial evidence will still be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 4 1987). 5 6 ISSUES 7 Plaintiff argues the ALJ erred in: 1) rejecting the opinions of Plaintiff’s 8 treating physician, Chang Shin, M.D.; 2) failing to develop the record to ascertain 9 whether Plaintiff’s headaches constitute a condition equaling Listing 11.02; 3) 10 discounting Plaintiff’s testimony about her symptoms and limitations; and 4) finding 11 that Plaintiff was capable of performing her past relevant work as an order filler. 12 13 DISCUSSION 14 SEQUENTIAL EVALUATION PROCESS 15 The Social Security Act defines "disability" as the "inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or can 18 be expected to last for a continuous period of not less than twelve months." 42 19 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 20 to be under a disability only if her impairments are of such severity that the claimant 21 is not only unable to do her previous work but cannot, considering her age, education 22 and work experiences, engage in any other substantial gainful work which exists in 23 the national economy. Id. 24 The Commissioner has established a five-step sequential evaluation process for 25 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 26 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 27 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 28 C.F.R. §§ 404.1520(a)(4)(I) and 416.920(a)(4)(I). If she is not, the decision-maker ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 proceeds to step two, which determines whether the claimant has a medically severe 2 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 3 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 4 of impairments, the disability claim is denied. If the impairment is severe, the 5 evaluation proceeds to the third step, which compares the claimant's impairment with 6 a number of listed impairments acknowledged by the Commissioner to be so severe 7 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 8 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 9 equals one of the listed impairments, the claimant is conclusively presumed to be 10 disabled. If the impairment is not one conclusively presumed to be disabling, the 11 evaluation proceeds to the fourth step which determines whether the impairment 12 prevents the claimant from performing work she has performed in the past. If the 13 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 14 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 15 the fifth and final step in the process determines whether she is able to perform other 16 work in the national economy in view of her age, education and work experience. 20 17 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 18 The initial burden of proof rests upon the claimant to establish a prima facie 19 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 20 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 21 mental impairment prevents her from engaging in her previous occupation. The 22 burden then shifts to the Commissioner to show (1) that the claimant can perform 23 other substantial gainful activity and (2) that a "significant number of jobs exist in the 24 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 25 1498 (9th Cir. 1984). 26 27 ALJ'S FINDINGS 28 The ALJ found the following: 1) Plaintiff has “severe” medical impairments, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 those being coronary artery disease status-post myocardial infarction and stenting; 2 chronic obstructive pulmonary disease (COPD); cervical degenerative disc disease; 3 headaches; and blindness of the right eve; 2) Plaintiff’s impairments do not meet or 4 equal any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 3) Plaintiff 5 has the residual functional capacity (RFC) to perform light work as defined in 20 6 C.F.R. §§ 404.1567(b) and 416.967(b), but cannot climb ladders, ropes and 7 scaffolds; cannot work around unprotected heights and dangerous moving machinery; 8 cannot perform jobs that require the ability to judge distances and spatial relationship 9 due to loss of depth perception; and cannot have concentrated exposure to respiratory 10 irritants; and 4) this RFC allows Plaintiff to perform her past work as an order filler. 11 Accordingly, the ALJ concluded that Plaintiff is not disabled. 12 13 MEDICAL OPINIONS 14 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 15 of a licensed treating or examining physician or psychologist is given special weight 16 because of his/her familiarity with the claimant and his/her condition. If the treating 17 or examining physician's or psychologist’s opinion is not contradicted, it can be 18 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 19 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 20 ALJ may reject the opinion if specific, legitimate reasons that are supported by 21 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 22 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 23 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 24 1216 (9th Cir. 2005). The opinion of a non-examining medical advisor/expert need 25 not be discounted and may serve as substantial evidence when it is supported by other 26 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 27 53 F.3d 1035, 1041 (9th Cir. 1995). 28 Plaintiff’s treating physician, Chang Shin, M.D., a neurologist, began treating ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 the Plaintiff in 1999 for issues related to her headaches and continued to treat her 2 monthly through the date of the ALJ’s decision. (AR at p. 995). In his decision, the 3 ALJ acknowledged that “physical examinations revealed tenderness to palpation in 4 the cervical paraspinals and diminished range of motion in the cervical spine.” (AR 5 at p. 21). The ALJ noted that imaging performed in 2012 showed degenerative disc 6 disease of the cervical spine with spinal stenosis. (Id.). See also AR at pp. 902-03. 7 The ALJ further noted there had been imaging in July 2015 and opined it “appeared 8 to show improvement and revealed only early osteoarthritic changes with small 9 anterior spur-fan-nation noted at levels C5-6 and [C]6-7.” (Id.)(emphasis added). 10 The ALJ pointed out that results of the 2015 imaging indicated the posterior elements 11 of the cervical spine were normal, the paraspinal soft tissues were normal, and that 12 the vertebral body heights and disc space heights were normal. (Id.). This led the 13 ALJ to opine that “[c]linical findings seem consistent with only early degenerative 14 changes in the cervical spine.” (Id.)(emphasis added). There is no indication in the 15 record, however, that any medical provider opined either that the July 2015 imaging 16 appeared to show improvement or seemed consistent with only early degenerative 17 changes in the cervical spine. James K. Symonds, M.D., who was responsible for 18 ordering the 2015 imaging, offered no such opinions and indeed, there is no 19 indication he reviewed the results of the imaging which took place in 2012. 20 Dr. Symonds conducted a consultative examination of the Plaintiff on July 21, 21 2015, at the behest of the Commissioner. Plaintiff informed Dr. Symonds that she 22 began having neck pain in 1982 and was treated conservatively until two years ago. 23 (AR at p. 980). Plaintiff advised that she had an “x-ray” and was told she had spinal 24 stenosis of her cervical spine. (Id.). She also advised that she had a right-sided 25 headache which she described as a migraine which began in 1982. (Id.). Dr. 26 Symonds observed that Plaintiff’s neck was tender in the right cervical spine and 27 there was a diminished range of motion, specifically decreased flexion. (AR at p. 28 982). He indicated that her “[r]ight frontal headaches [were] probably secondary to ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 1 her neck pain.” (AR at p. 984). The doctor’s “Functional Assessment” was as 2 follows: 3 Based on the examination today[,] the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. The 4 claimant can stand and walk for 6 hours in an eight hour day. The claimant can sit for 6 hours in an eight hour day. There 5 should be frequent changes in the sitting and standing position. 6 (Id.). 7 The ALJ gave partial weight to the opinion from Dr. Symonds. The ALJ found 8 his opinion regarding Plaintiff’s ability to perform lifting, carrying, sitting and 9 standing activities consistent with “light exertion”1 was “supported by the 10 longitudinal evidence of record, including the [Plaintiff’s] physical examinations, 11 imaging, and activities . . . .” (AR at p. 24). The ALJ assigned less weight, 12 however, to Dr. Symond’s opinion that Plaintiff should have frequent changes in 13 sitting and standing positions. (Id.). According to the ALJ, “Dr. Symonds did not 14 provide rationale for a sit/stand limitation, nor is it supported by objective evidence, 15 like a lower back impairment, that would reasonably warrant a sit/stand limitation.” 16 (Id.). 17 Here again, the ALJ did not cite any medical opinion in support of his assertion 18 that a sit/stand limitation was not supported by objective evidence. Indeed, it is noted 19 that Dr. Shin, Plaintiff’s treating physician, agreed that Plaintiff required a sit/stand 20 option. (AR at p. 24). The symptoms of degenerative disc disease, be it in the 21 cervical spine or the lumbar spine, include reduced pain when changing positions 22 23 1 20 C.F.R. §§ 404.1567(b) and 416.967(b) define “light” work as involving 24 25 lifting no more than 20 pounds at a time with frequent lifting or carrying of objects 26 weighing up to 10 pounds. It involves a good deal of walking or standing, or 27 28 sitting most of the time with some pushing and pulling of arm or leg controls. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 1 frequently, rather than remaining seated or standing for prolonged periods. 2 https://www.spinehealth.com/conditions/degenerative-disc-disease/common- 3 symptoms-degenerative-disc-disease. 4 The non-examining state agency physicians did not offer any opinion on Dr. 5 Symond’s sit/stand limitation, assigning Dr. Symond’s opinion “other weight” only 6 because the shoulder limitations he opined were not supported by “alternative 7 evidence.” (AR at pp. 87, 100, 119 and 136 ). The shoulder limitations opined by Dr. 8 Symonds (manipulative limitations of reaching with bilateral shoulders) were due to 9 Plaintiff’s complaints about dyspnea (shortness of breath) upon exertion, but the 10 doctor acknowledged this was supported by “little objective evidence.” (AR at p. 11 984). The non-examining state agency physicians otherwise agreed with the 12 exertional limitations opined by Dr. Symonds (“light” work). While Dr. Symonds 13 could not have reviewed the exertional limitations opined by Plaintiff’s treating 14 physician, Dr. Shin, which were rendered in August 2015, it appears that opinion was 15 available to the non-examining physicians as “reconsideration evidence” during the 16 reconsideration process in early 2016. (AR at pp. 112 and 129). Either the state 17 agency physicians overlooked it or disregarded it. Accordingly, no physician 18 specifically addressed Dr. Shin’s August 2015 opinion which was that as a result of 19 Plaintiff’s “intractable headache with cervicogenic component,”2 she should never lift 20 10-20 pounds, could occasionally lift 5-10 pounds, could frequently lift 0-5 pounds, 21 should never carry 20-50 pounds, could occasionally carry 10-20 pounds, and could 22 23 2 A cervicogenic headache is a secondary headache caused by a problem in 24 25 the neck region, such as cervical degenerative disease. Symptoms include pain on 26 one side of the head that bears similarity to a migraine headache. 27 28 https://www.webmd.com/migraines-headaches/cervicogenic-headache-facts_#1 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 frequently carry 5-10 pounds. (AR at p. 998). 2 The ALJ gave little weight to Dr. Shin’s opinion because he did not provide 3 “completed evaluations with objective findings consistent with such limitations.” 4 (AR at p. 25). Dr. Shin, however, was asked to identify the laboratory and diagnostic 5 test results which supported his diagnosis and he noted the heretofore mentioned 6 “MRI finding of multilevel neuroforaminal [and] central canal stenosis.” (AR at p. 7 996). And he was asked to identify the positive clinical findings supporting his 8 diagnosis and he stated it was Plaintiff’s neck pain which was “diffusely worse on the 9 right than the left.” (AR at p. 995). 10 The ALJ also found Dr. Shin’s opinion inconsistent with his treatment notes 11 which “noted the [Plaintiff’s] complaints of pain were zero or minimal at the time of 12 treatment, and indicated that her pain was primarily located in her head.” (AR at p. 13 25). Clearly, there is nothing unusual about pain being primarily located in the head 14 as the result of an underlying neck condition. Furthermore, while it is true that in the 15 treatment notes singled out by the ALJ dating from February 2017 to February 2018, 16 Plaintiff indicated her pain “right now” at the time of the appointment was “0,” she 17 also indicated that her pain level ranged from “0" to “7” or “8," classified as “severe” 18 (AR at pp. 1181; 1185; 1188; 1191; 1197; and 1199). In two of those reports, 19 Plaintiff indicated her “average” pain rated a “7" (AR at pp. 1191 and 1199). The fact 20 Plaintiff periodically experienced no headache pain is not necessarily inconsistent 21 with Dr. Shin’s opinion regarding Plaintiff’s limitations. 22 The ALJ added that “despite [Plaintiff’s] . . . long-standing complaints of 23 headache, [she] performed light to medium work through 2014 with no 24 documentation of any change in her condition to warrant this 10-pound lifting 25 restriction.” (AR at p. 25). Plaintiff, however, did not perform work “through 2014,” 26 as the record indicates she quit her last job in May of 2014. (AR at pp. 278 and 956). 27 Upon questioning by the ALJ, Plaintiff testified that she was experiencing headaches 28 on her last job, but was allowed to go home when necessary without getting into ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 1 trouble with her employer or causing any problem for her employer. (AR at pp. 53- 2 54). Dr. Shin’s records show that Plaintiff suffered from headaches of varying 3 severity during his treatment of her starting in 1999. (AR at pp. 683-894). These 4 headaches did not stop Plaintiff from continuing to work until May 2014. It is noted, 5 however, that in 1999, and again in 2000 and 2001, Dr. Shin completed a form 6 advising Plaintiff’s employer she would require a day off “here and there” because 7 of her migraines (AR at pp. 908-10, 915), and in December 2009, he completed a 8 form for Plaintiff to take a leave of absence for up to 12 days a year, if needed. (AR 9 at p. 788). The first time Dr. Shin opined about a lifting/carrying limitation was in 10 2015, after Plaintiff had left her last job. It is reasonable to presume that at that time, 11 the doctor took Plaintiff’s advanced age (58) into consideration, in combination with 12 her headaches for which a cervicogenic origin was not established until September 13 2012 at the earliest. 14 For all of the reasons discussed above, the ALJ did not offer legitimate reasons 15 for accepting the opinions of the non-examining state agency physicians and 16 consultative examiner, Dr. Symonds, regarding Plaintiff’s lifting and carrying 17 capabilities, instead of the lifting and carrying capabilities opined by Plaintiff’s 18 treating physician, Dr. Shin. Nor did the ALJ offer a legitimate reason for rejecting 19 Dr. Shin’s opinion that Plaintiff required a sit/stand option, an opinion shared by Dr. 20 Symonds and as to which the state agency physicians did not take issue. 21 22 TESTIMONY RE SYMPTOMS AND LIMITATIONS 23 Where, as here, the Plaintiff has produced objective medical evidence of an 24 underlying impairment that could reasonably give rise to some degree of the 25 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 26 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Garrison 27 v. Colvin, 759 F.3d 95, 1014 (9th Cir. 2014); Burrell v. Colvin, 775 F.3d 1133, 1137 28 (9th Cir. 2014). If an ALJ finds a claimant’s subjective assessment unreliable, “the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 ALJ must make a credibility determination with findings sufficiently specific to 2 permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit [the] 3 claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). 4 Among other things, the ALJ may consider: 1) the claimant's reputation for 5 truthfulness; 2) inconsistencies in the claimant's testimony or between her testimony 6 and her conduct; 3) the claimant’s daily living activities; 4) the claimant's work 7 record; and 5) testimony from physicians or third parties concerning the nature, 8 severity, and effect of claimant's condition. Id. Subjective testimony cannot be 9 rejected solely because it is not corroborated by objective medical findings, but 10 medical evidence is a relevant factor in determining the severity of a claimant’s 11 impairments. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 12 The ALJ found that Plaintiff’s “statements concerning the intensity, persistence 13 and limiting effects of [her] symptoms are not entirely consistent with the medical 14 evidence and other evidence in the record . . . .” (AR at p. 20). As discussed above, 15 the medical evidence is consistent with Plaintiff being limited to lifting 10 pounds 16 and being allowed to sit and stand at will at any type of job. 17 The ALJ found Plaintiff’s allegations were “not entirely consistent with her 18 self-reports and reported activities” including having no problems with performing 19 self-care activities such as dressing, bathing, caring for her hair, and shaving; walking 20 around her block twice daily; and grocery shopping one to two times per week, which 21 takes her two to three hours. (AR at p. 23). “The Social Security Act does not 22 require that claimants be utterly incapacitated to be eligible for benefits . . . and many 23 home activities are not easily transferable to what may be the more grueling 24 environment of the workplace where it might be impossible to periodically rest or 25 take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “[T]he mere fact 26 that a plaintiff has carried on certain daily activities, such as grocery shopping, 27 driving a car, or limited walking for exercise, does not in any way detract from . . . 28 credibility as to overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 1 2001). Rather, “[i]t is only where the level of activity is inconsistent with a claimed 2 limitation that the activity has any bearing on credibility.” Id. Daily activities 3 therefore “may be grounds for an adverse credibility finding if a claimant is able to 4 spend a substantial part of h[er] day engaged in pursuits involving physical functions 5 that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 6 2007). To conclude that a claimant’s daily activities warrant an adverse credibility 7 determination, the ALJ must make specific findings relating to the daily activities and 8 the transferability of the activities to the workplace. Id. 9 The activities cited by the ALJ, self-care, walking around the block, and 10 grocery shopping, are not inconsistent with Plaintiff being limited to lifting no more 11 than 10 pounds and requiring a sit/stand option in the workplace. The ALJ did not 12 offer clear and convincing reasons for discounting Plaintiff’s testimony that her 13 symptoms are severe enough to justify these limitations. 14 15 REMAND 16 Social security cases are subject to the ordinary remand rule which is that when 17 “the record before the agency does not support the agency action, . . . the agency has 18 not considered all the relevant factors, or . . . the reviewing court simply cannot 19 evaluate the challenged agency action on the basis of the record before it, the proper 20 course, except in rare circumstances, is to remand to the agency for additional 21 investigation or explanation.” Treichler v. Commissioner of Social Security 22 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 23 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 24 In “rare circumstances,” the court may reverse and remand for an immediate 25 award of benefits instead of for additional proceedings. Id., citing 42 U.S.C. §405(g). 26 Three elements must be satisfied in order to justify such a remand. The first element 27 is whether the “ALJ has failed to provide legally sufficient reasons for rejecting 28 evidence, whether claimant testimony or medical opinion.” Id. at 1100, quoting ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 1 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If the ALJ has so erred, the 2 second element is whether there are “outstanding issues that must be resolved before 3 a determination of disability can be made,” and whether further administrative 4 proceedings would be useful. Id. at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 5 887 (9th Cir. 2004). “Where there is conflicting evidence, and not all essential factual 6 issues have been resolved, a remand for an award of benefits is inappropriate.” Id. 7 Finally, if it is concluded that no outstanding issues remain and further proceedings 8 would not be useful, the court may find the relevant testimony credible as a matter of 9 law and then determine whether the record, taken as a whole, leaves “not the slightest 10 uncertainty as to the outcome of [the] proceedings.” Id., quoting NLRB v. Wyman- 11 Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Where all three elements are satisfied- 12 ALJ has failed to provide legally sufficient reasons for rejecting evidence, there are 13 no outstanding issues that must be resolved, and there is no question the claimant is 14 disabled- the court has discretion to depart from the ordinary remand rule and remand 15 for an immediate award of benefits. Id. But even when those “rare circumstances” 16 exist, “[t]he decision whether to remand a case for additional evidence or simply to 17 award benefits is in [the court’s] discretion.” Id. at 1102, quoting Swenson v. 18 Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). 19 The ALJ failed to provide legally sufficient reasons for rejecting the opinions 20 of Plaintiff’s treating physician regarding Plaintiff’s limitations, and failed to provide 21 legally sufficient reasons for discounting Plaintiff’s testimony regarding the severity 22 of her symptoms. Plaintiff’s limitations, specifically her not being able to lift more 23 than 10 pounds and needing to sit and stand at will, means she cannot perform “light” 24 work and is limited to performing “sedentary” work as defined in 20 C.F.R. §§ 25 404.1567(a) and 416.967(a).3 Consequently, as acknowledged by the ALJ at the 26 27 28 3 “Sedentary” work involves lifting no more than 10 pounds at a time and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 1 hearing, Plaintiff is precluded from performing all of her past relevant work because 2 none of that work was “sedentary.” (AR at p. 66). Furthermore, because Plaintiff 3 needs to sit and stand at will, she is precluded from performing the full range of 4 “sedentary” work. Social Security Ruling (SSR) 96-9p. On remand, Plaintiff’s lifting 5 limitation and her need to alternate sitting and standing frequently have to be 6 presented to the VE, along with the non-exertional limitations found by the ALJ, to 7 determine at step five whether there are “sedentary” jobs in significant numbers in 8 the national economy which the Plaintiff is capable of performing. Because Plaintiff 9 is of advanced age (55 or older), transferability of skills to other work will need to be 10 considered. 20 C.F.R. §§ 404.1568(d)(4) and 416.968(d)(4).4 11 12 CONCLUSION 13 Plaintiff’s Motion For Summary Judgment (ECF No. 15) is GRANTED and 14 Defendant’s Motion For Summary Judgment (ECF No. 17) is DENIED. 15 16 occasionally lifting or carrying articles like docket files, ledgers, and small tools. 17 It primarily involves sitting, although walking and standing may be required 18 19 occasionally. 20 4 On remand, Plaintiff is not precluded from asking the ALJ to develop the 21 22 record regarding whether Plaintiff’s headaches occur with enough frequency to 23 equal Listing 11.02. Plaintiff’s counsel did not include this argument in his pre- 24 25 hearing memorandum (AR at pp. 338-40) and did not advance it at the hearing. 26 Therefore, the court is not obliged to determine at this time whether the ALJ erred 27 28 in not developing the record. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14 1 Pursuant to sentence four of 42 U.S.C. §405(g), the Commissioner's decision 2 is REVERSED and REMANDED for further administrative proceedings consistent 3 with this order. 4 IT IS SO ORDERED. The District Executive shall enter judgment 5 accordingly, forward copies of the judgment and this order to counsel of record, and 6 close the case. 7 DATED this 19th day of May, 2020. 8 9 10 LONNY R. SUKO 11 Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 15