Karen Scott v. Andrew Saul

• Court: District Court, C.D. California
• Decided: July 27, 2020
• Docket: 2:19-cv-08016
• Status: Unknown

Opinion

3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 KAREN S. for DANIEL W. B., C a s e No. CV 19-08016-PD 13 Plaintiff, 14 MEMORANDUM OPINION v. AND ORDER 15 ANDREW M. SAUL, Commissioner 16 of Social Security,

17 Defendant. 18 I. INTRODUCTION 19 Plaintiff Daniel W. B. (“Plaintiff”) challenges the Commissioner’s denial 20 of his application for a period of disability and disability insurance benefits 21 (“DIB”). For the reasons stated below, the decision of the Commissioner is 22 REVERSED, and the action is REMANDED.1 23

24 1 Daniel W. B. passed away on January 26, 2018, and his sister, Karen S.,

25 substituted in as a party to his DIB claim. [Joint Stipulation [“JS”] at 2.] Because the claim is on Mr. B.’s behalf, the references to “Plaintiff” in this Memorandum 26 are to Mr. B. Plaintiff’s name is partially redacted in compliance with Federal Rule 27 of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. 1 On May 9, 2016, Plaintiff protectively filed a Title II application for DIB 2 alleging disability beginning September 10, 2014. [Administrative Record 3 [“AR”] 16, 148.] His application was denied initially on August 24, 2016. [AR 4 53-57.] Plaintiff requested a hearing before an Administrative Law Judge 5 (“ALJ”), and a hearing was held on September 17, 2018. [AR 29-43, 58-59.] 6 Plaintiff had passed away, so his sister, Karen S., who had substituted in as a 7 party to Plaintiff’s claim, appeared with counsel and testified, along with an 8 impartial vocational expert (“VE”). [AR 29-43.] On October 23, 2018, the ALJ 9 found that Plaintiff had been under a disability, pursuant to the Social 10 Security Act,2 beginning on February 1, 2017, but had not been under a 11 disability prior to that date. [AR 24.] The Appeals Council denied Plaintiff’s 12 request for review. [AR 1-6.] This action followed when Plaintiff filed an 13 action in this Court on September 16, 2019. [Dkt. No. 1.] 14 The ALJ followed a five-step sequential evaluation process to assess 15 whether Plaintiff was disabled under the Social Security Act. Lester v. 16 Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that 17 Plaintiff had not engaged in substantial gainful activity from September 10, 18 2014, the alleged onset date (“AOD”). [AR 18.] At step two, the ALJ found 19 that Plaintiff had the following severe impairments: lupus, Sjogren’s 20 syndrome, rheumatoid arthritis, and liver cirrhosis. [Id.] At step three, the 21 ALJ found that Plaintiff “has not had an impairment or combination of 22 impairments that meets or medically equals the severity of one of the listed 23 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” [AR 19.] 24

25 2 Persons are “disabled” for purposes of receiving Social Security benefits 26 if they are unable to engage in any substantial gainful activity owing to a 27 physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 28 U.S.C. § 423(d)(1)(A). 1 Before proceeding to step four, the ALJ found that prior to February 1, 2 2017, Plaintiff had the residual functional capacity (“RFC”) to perform light 3 work with occasional handling and fingering bilaterally. [Id.] The ALJ 4 further found that beginning on February 1, 2017, Plaintiff had the RFC to 5 perform sedentary work with occasional handling and fingering bilaterally. 6 [AR 21.] At step four, based on Plaintiff’s RFC and the vocational expert’s 7 testimony, the ALJ found that Plaintiff was unable to perform any past 8 relevant work. [AR 22.] At step five, the ALJ found that prior to February 1, 9 2017, Plaintiff could perform other jobs that existed in significant numbers in 10 the national economy; beginning on February 1, 2017, however, Plaintiff could 11 not perform other jobs that exited in significant numbers in the national 12 economy. [AR 22-23.] Accordingly, the ALJ found that Plaintiff was not 13 disabled prior to February 1, 2017 but became disabled on that date and 14 continued to be disabled through the date of his death. [AR 23.] 15 III. STANDARD OF REVIEW 16 Under 42 U.S.C. § 405(g), a district court may review the 17 Commissioner’s decision to deny benefits. A court must affirm an ALJ’s 18 findings of fact if they are supported by substantial evidence, and if the proper 19 legal standards were applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 20 Cir. 2001). “‘Substantial evidence’ means more than a mere scintilla, but less 21 than a preponderance; it is such relevant evidence as a reasonable person 22 might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 23 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 24 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial evidence 25 requirement “by setting out a detailed and thorough summary of the facts and 26 conflicting clinical evidence, stating his interpretation thereof, and making 27 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 28 omitted). 1 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 2 specific quantum of supporting evidence. Rather, a court must consider the 3 record as a whole, weighing both evidence that supports and evidence that 4 detracts from the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 5 1033, 1035 (9th Cir. 2001) (citations and internal quotations omitted). 6 “‘Where evidence is susceptible to more than one rational interpretation,’ the 7 ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 8 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 9 2005)); see also Robbins, 466 F.3d at 882 (“If the evidence can support either 10 affirming or reversing the ALJ’s conclusion, we may not substitute our 11 judgment for that of the ALJ.”). The Court may review only “the reasons 12 provided by the ALJ in the disability determination and may not affirm the 13 ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 14 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 15 2003)). 16 IV. DISCUSSION 17 Plaintiff raises the following arguments: (1) the ALJ erred in 18 determining Plaintiff’s RFC prior to February 1, 2017; (2) the ALJ erred in 19 rejecting Plaintiff’s allegations regarding his subjective symptoms and 20 functional limitations prior to February 1, 2017; and (3) the ALJ erred in 21 finding at step five that he had the ability to perform jobs existing in 22 significant numbers in the national economy prior to February 1, 2017. [JS at 23 3-7, 15-20, 27.) The Commissioner asserts that the ALJ’s decision should be 24 affirmed. [JS at 7-15, 20-29.) As set forth below, the Court agrees with 25 Plaintiff, if part, and remands for further proceedings. 26 A. Plaintiff’s RFC Prior to February 1, 2017 27 1. Plaintiff’s Allegations 28 Plaintiff contends that the ALJ erred in determining his RFC prior to 1 February 1, 2017, arguing it was “arbitrary and contrary to the substantial 2 evidence in the record.” [JS at 3.] Specifically, Plaintiff argues that the ALJ 3 improperly evaluated the treating opinions of Richard Lander, M.D. and 4 William Martin, M.D. in determining that Plaintiff could perform light work 5 prior to February 1, 2017. [JS at 4-6.] Plaintiff further argues that the ALJ 6 should have consulted with a medical expert to make an informed judgment 7 regarding the onset date. [JS at 6-7.] 8 2. Applicable Legal Standards 9 In assessing a claimant’s RFC, the ALJ is required to consider all 10 limitations and restrictions imposed by all impairments, even those deemed 11 not severe. See Soc. Sec. Ruling (“SSR”) 96-8p, 1996 WL 374184, at *5 (July 2, 12 1996) (requiring ALJ’s RFC assessment to “consider limitations and 13 restrictions imposed by all of an individual’s impairments, even those that are 14 not ‘severe’”). The RFC reflects the most a claimant can do despite his 15 limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). The 16 ALJ assesses a claimant’s RFC “based on all of the relevant medical and other 17 evidence,” including any statements provided by medical sources. 20 C.F.R. 18 §§ 404.1513(a), 404.1545(a)(3), 404.1546(c). An ALJ’s determination of a 19 claimant’s RFC must be affirmed if the ALJ has applied the proper legal 20 standard and substantial evidence in the record as a whole supports the 21 decision. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 22 An ALJ must consider all medical opinions of record. 20 C.F.R. § 23 404.1527(b).3 Courts give varying degrees of deference to medical opinions 24 25 3 Section 404.1527 applies because Plaintiff filed his application before March 26 27, 2017. For an application filed on or after March 27, 2017, 20 C.F.R. § 27 404.1520c would apply. The new regulations changed how the Social Security Administration considers medical opinions and prior administrative medical 28 findings, eliminated the use of the term “treating source,” and eliminated deference 1 based on the provider: (1) treating physicians who examine and treat; (2) 2 examining physicians who examine, but do not treat; and (3) non-examining 3 physicians who do not examine or treat. Valentine v. Comm’r Soc. Sec. 4 Admin., 574 F.3d 685, 692 (9th Cir. 2009). A treating physician’s opinion is 5 generally given the most weight and may be “controlling” if it is “well- 6 supported by medically acceptable clinical and laboratory diagnostic 7 techniques and is not inconsistent with the other substantial evidence in [the 8 claimant's] case record[.]” 20 C.F.R. § 404.1527(c)(2); Revels v. Berryhill, 874 9 F.3d 648, 654 (9th Cir. 2017) (citation omitted). Most often, the opinion of a 10 treating physician is given greater weight than the opinion of a non-treating 11 physician, and the opinion of an examining physician is given greater weight 12 than the opinion of a non-examining physician. See Garrison v. Colvin, 759 13 F.3d 995, 1012 (9th Cir. 2014). 14 The ALJ must provide “clear and convincing” reasons to reject the 15 ultimate conclusions of a treating or examining physician. Embrey v. Bowen, 16 849 F.2d 418, 422 (9th Cir. 1988); Lester, 81 F.3d at 830-31. When a treating 17 or examining physician’s opinion is contradicted by another opinion, the ALJ 18 may reject it only by providing specific and legitimate reasons supported by 19 substantial evidence in the record. Orn, 495 F.3d at 633; Lester, 81 F.3d at 20 830; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 21 2008). “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting 22 out a detailed and thorough summary of the facts and conflicting evidence, 23 stating his interpretation thereof, and making findings.’” Garrison, 759 F.3d 24 at 1012 (citation omitted). 25 26 27 to treating source medical opinions. See 20 C.F.R. § 404.1520c(a); see also 81 Fed. 28 Reg. 62560, at 62573-74 (Sept. 9, 2016). 1 Here, the medical opinion evidence consists of an opinion from a State 2 Agency non-examining doctor, E. Christian M.D, and opinions from Plaintiff’s 3 treating internal medicine physician, Dr. Lander, and Plaintiff’s treating 4 rheumatologist, Dr. Martin. [AR 20-21, 390-98.] 5 On August 11, 2016, the State Agency review physician, Dr. Christian, 6 opined that Plaintiff could perform a range of light work. [AR 48-49.] 7 On February 14, 2017, Dr. Lander opined in a letter “To Whom It May 8 Concern” that Plaintiff is “disabled from any employment.” [AR 390.] Dr. 9 Lander explained that due to muscle weakness and wasting and joint pain 10 associated with Plaintiff’s systemic lupus erythematosus, rheumatoid 11 arthritis, and Sjogren’s syndrome, Plaintiff’s physical activity and ability to 12 function were “severely limited.” [Id.] Dr. Lander opined that due to his 13 impairments, Plaintiff would require frequent unscheduled breaks of 15-20 14 minutes or more per hour and unscheduled days off of more than 5-6 days per 15 month. [Id.] 16 On that same date, Dr. Lander completed a physical RFC questionnaire. 17 [AR 391-94.] He noted that he had been Plaintiff’s primary care physician for 18 12 years and had seen him “more frequently” in the last two and a half years. 19 [AR 391.] He diagnosed Plaintiff with systemic lupus erythematosus, 20 rheumatoid arthritis, and Sjogren’s syndrome. [Id.] He described Plaintiff’s 21 symptoms of weakness and pain in the hands and legs and cited clinical 22 findings of muscle wasting and weakness in the hands, arms, and legs. [Id.] 23 Plaintiff could occasionally lift and/or carry less than 10 pounds, could stand 24 and/or walk less than two hours in an eight-hour workday, and sit less than 25 six hours in an eight-hour workday. [AR 392.] Plaintiff’s ability to push 26 and/or pull was limited in the upper and lower extremities due to weakness 27 and pain in his extremities, and Plaintiff could never bend, climb, crouch, 28 1 balance, kneel, crawl, reach, handle, or finger. [AR 393.] Plaintiff would need 2 to frequently change position and would need to take unscheduled breaks 3 during an eight-hour workday. [AR 392.] Plaintiff’s impairments would 4 cause him to be absent more than three times a month. [Id.] 5 On March 1, 2017, Dr. Martin completed a physical RFC questionnaire. 6 [AR 395-98.] He indicated that he had provided Plaintiff with rheumatology 7 care every two to three months over the past one and a half years. [AR 395.] 8 He diagnosed Plaintiff with lupus, Sjogren’s, rheumatoid arthritis, and 9 cirrhosis. [Id.] He described Plaintiff’s symptoms as “debilitating joint pain, 10 particularly hands/hips, constant, exacerbated by activity, severe.” [Id.] He 11 identified clinical findings of joint tenderness/swelling, and elevated markers 12 of inflammation. [Id.] Plaintiff could occasionally lift and/or carry less than 13 10 pounds and could stand and/or walk about two hours in an eight-hour 14 workday. [AR 396.] Plaintiff could sit less than six hours in an eight-hour 15 workday. [Id.] Plaintiff’s ability to push and/or pull was limited in the upper 16 and lower extremities due to severe hand and hip pains. [AR 397.] Plaintiff 17 could occasionally bend, kneel or reach, and could never climb, crouch, 18 balance, crawl, handle or finger. [Id.] Plaintiff would need to shift positions 19 at will and would need to take unscheduled breaks “at least 30 minutes per 20 hour.” [AR 396.] Plaintiff’s impairments would cause him to be absent from 21 work more than three times a month. [Id.] 22 For the period prior to February 1, 2017, the ALJ gave the State Agency 23 opinion “some weight,” finding the opinion “broadly consistent” with the 24 evidence at the time of the review, but inconsistent with subsequent evidence 25 that “establishes that [Plaintiff] is slightly more limited than initially 26 assessed.” [AR 20, 48-49.] 27 For the period beginning on February 1, 2017, the ALJ gave “some 28 weight” to the treating opinions, finding them “broadly consistent” with 1 Plaintiff’s treatment notes that showed severe muscle wasting and that 2 Plaintiff required care for many of his personal needs. [AR 21.] The ALJ 3 noted that the treating opinions were signed after February 1, 2017 and did 4 not specify a period to which their opinions applied. [Id.] 5 The Court finds that the ALJ’s reasons for discounting the treating 6 opinions, which were contradicted by the non-examining State Agency doctor, 7 are not specific and legitimate and supported by substantial evidence prior to 8 February 1, 2017. For this period, the ALJ failed entirely to discuss the 9 treating opinions, let alone explain why he rejected them in favor of the non- 10 examining State Agency doctor’s opinion. [AR 19-21.] This was error. See 11 Orn, 495 F.3d at 633; see also Smolen, 80 F.3d at 1286 (“By disregarding 12 [treating physician’s and specialist’s] opinions and making contrary findings, 13 [the ALJ] effectively rejected them.”). To the extent the ALJ concluded that 14 the treating opinions supported a finding of a sedentary RFC only beginning 15 on February 1, 2017 because “these opinions were all signed after February 1, 16 2017, the established onset date,” the ALJ’s reasoning is flawed. Neither Dr. 17 Lander nor Dr. Martin limited his opinion to February 1, 2017 forward, and 18 they had been treating Plaintiff frequently in the past two and a half years 19 and one and a half years, respectively. [AR 390-98.] Dr. Lander described 20 Plaintiff’s diseases as progressive and noted clinical findings of muscle 21 wasting and weakness in the hands, arms and legs, and Dr. Martin noted 22 findings of joint tenderness/swelling and elevated markers of inflammation. 23 [AR 391, 395.] There is support in the record for these findings prior to 24 February 1, 2017. [AR 253, 279, 299, 304, 415, 417, 447, 466, 471, 473.] If the 25 ALJ found the treating opinions contradicted by the treating physicians’ own 26 treatment notes, he did not say so or explain why. Cf. Bayliss, 427 F.3d at 27 1216 (contradiction between treating physician’s assessment and clinical 28 notes justifies rejection of assessment). 1 The Commissioner cites various treatment notes and argues that the 2 record supports the ALJ’s finding of February 1, 2017 as the date of Plaintiff’s 3 onset of disability. [JS at 8-12.] The ALJ, however, did not cite these 4 treatment notes to justify the rejection of the treating opinions prior to 5 February 1, 2017. The ALJ failed to provide specific and legitimate reasons 6 based on substantial evidence of record for rejecting the treating opinions 7 prior to February 1, 2017.4 8 Despite the Commissioner’s argument to the contrary, the ALJ’s error is 9 not harmless. If the ALJ had given the treating opinions controlling weight or 10 had credited the statements as true for the period prior to February 1, 2017, 11 the outcome would have been different. See Stout v. Comm’r, Soc. Sec. 12 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (error is harmless if it is 13 inconsequential to the ultimate nondisability determination). With a 14 sedentary RFC and no transferrable skills, Plaintiff would be disabled per 15 Medical-Vocational Rule 201.14. In addition, the VE testified that a 16 hypothetical person could not perform any work if the individual had to take a 17 break every hour for 15 or more minutes or had to miss two or more workdays 18 per month on a continuing basis. [AR 41-42.] 19 In sum, the Court finds that the ALJ did not properly consider the 20 treating medical opinion evidence in assessing Plaintiff’s RFC prior to 21 February 1, 2017, and remand is warranted. On remand, the ALJ should re- 22 evaluate the treating medical opinion evidence in assessing Plaintiff’s RFC 23 prior to February 1, 2017, and if appropriate, provide specific and legitimate 24

25 4 Plaintiff also argues that the ALJ implicitly rejected the portions of the treating opinions limiting Plaintiff to less than sedentary work. [JS at 5.] 26 The Court agrees. On remand, the ALJ must provide specific and legitimate 27 reasons supported by substantial evidence in the record if he rejects the treating opinions. 28 1 reasons supported by substantial evidence for discounting such opinions.5 2 B. Plaintiff’s Subjective Symptoms and Functional Limitations Prior to February 1, 2017 3 Plaintiff contends that the ALJ improperly rejected Plaintiff’s 4 allegations regarding his subjective symptoms and functional limitations prior 5 to February 1, 2017, failing to provide any specific, clear and convincing 6 reasons supported by substantial evidence in the record. [JS at 15-20.] 7 1. Plaintiff’s Allegations 8 In a Disability Report, Plaintiff alleged that he could not work due to 9 rheumatoid arthritis, Sjogren’s syndrome, systemic lupus, and cirrhosis of 10 liver without ascites. [AR 167.] In an Exertion Questionnaire, dated June 4, 11 2016, Plaintiff indicated he suffers from chronic pain. [AR 190.] He could lift 12 his medication twice a day and could carry himself not far. [AR 191.] He 13 could drive a car for 40 minutes, but could no longer do his own grocery 14 shopping, clean his house, or work in the yard. [Id.] He requires rest periods 15 or naps during the day. [AR 192.] In a Disability Report – Appeal, Plaintiff 16 indicated that his rheumatoid arthritis symptoms and lupus condition had 17

18 5 The Court finds that the ALJ was not obligated to consult a medical 19 expert. “[I]n circumstances where the ALJ must determine the date of disability onset and medical evidence from the relevant time period is 20 unavailable or inadequate, SSR 83-20 states that the ALJ should call a 21 medical advisor.” Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017). However, “[SSR 83-20’s] language does not expressly mandate that the ALJ 22 consult a medical advisor in every case where the onset of disability must be 23 inferred.” Wellington v. Berryhill, 878 F.3d 867, 874 (9th Cir. 2017) (quoting Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995)). As the Commissioner notes, 24 SSR 83-20 was rescinded and replaced with SSR 18-1p in October 2018, which 25 clarifies that the ALJ “may, but is not required to, call upon the services of a medical expert” to assist in determining the onset date. [JS at 13 n.6] (citing 26 SSR 18-1p, 2018 WL 4945639, at *2 (Oct. 2, 2018)). Here, the medical records 27 give an adequate chronology of Plaintiff’s conditions, and Plaintiff does not contend otherwise. On remand, the ALJ may, but is not required to, call a 28 medical expert to assist in determining the onset date. 1 continued to worsen as of June 30, 2016. [AR 198.] 2 At the hearing, Plaintiff’s sister testified that Plaintiff stopped working 3 because “he couldn’t perform his daily functions anymore,” “[h]e couldn’t lift 4 anything,” “[he] was fatigued,” “[h]e would need to sleep all the time,” “[h]e was 5 taking the medication,” and “[h]is hands were always in pain.” [AR 35.] She 6 witnessed him getting out of breath from walking ten feet. [AR 36.] He 7 “constantly had to stop, sit and then continue to move.” [Id.] Plaintiff pretty 8 much slept “most of the time” and his girlfriend did “everything” for him, such 9 as cooking, cleaning, and helping him bathe. [Id.] Plaintiff moved in with his 10 sister in September 2017 and “he would sleep for two days.” [Id.] Plaintiff’s 11 sister and her daughter “basically did everything for him.” [AR 36-37.] 12 Plaintiff’s symptoms were still debilitating with medication. [AR 37.] When 13 Plaintiff lived with his sister, he was not doing well and was not drinking at all. 14 [AR 38.] In the past, he had consumed a six-pack a day of Coors Lite. [Id.] 15 2. Applicable Legal Standards 16 “In assessing the credibility of a claimant’s testimony regarding 17 subjective pain or the intensity of symptoms, the ALJ engages in a two-step 18 analysis.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing 19 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “First, the ALJ must 20 determine whether the claimant has presented objective medical evidence of 21 an underlying impairment which could reasonably be expected to produce the 22 pain or other symptoms alleged.” Treichler v. Comm’r of Soc. Sec. Admin., 23 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1036) 24 (internal quotation marks omitted). If so, and if the ALJ does not find 25 evidence of malingering, the ALJ must provide specific, clear and convincing 26 reasons for rejecting a claimant’s testimony regarding the severity of his 27 symptoms. Id. The ALJ must identify what testimony was found not credible 28 and explain what evidence undermines that testimony. Holohan v. 1 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are 2 insufficient.” Lester, 81 F.3d at 834. 3 SSR 16-3p governs the evaluation of subjective symptoms and instructs 4 the ALJ to “consider all of the evidence in an individual’s record,” “to 5 determine how symptoms limit ability to perform work-related activities.” 6 SSR 16-3p, 2017 WL 5180304 at *2 (Oct. 25, 2017) (SSR 16-3p was “applicable 7 [rather than effective] on March 28, 2016”). The Ninth Circuit has noted that 8 SSR 16-3p is consistent with its prior precedent. See Trevizo v. Berryhill, 871 9 F.3d 664, 678 n.5 (9th Cir. 2017) (SSR 16-3p “makes clear what [Ninth 10 Circuit] precedent already required”). 11 3. Discussion 12 For the period prior to February 1, 2017, the ALJ found Plaintiff’s 13 subjective allegations to be “partially consistent with the record as a whole.” 14 [AR 20.] The ALJ noted that the treatment notes show that Plaintiff 15 admitted to driving a motor vehicle and chopping wood, which “are generally 16 inconsistent with the degree of functional limitation alleged.” [Id.] 17 Inconsistencies between symptom allegations and daily activities may 18 act as a clear and convincing reason to discount a claimant’s credibility. See 19 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. 20 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). But a claimant need not be 21 utterly incapacitated to obtain benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th 22 Cir. 1989). “If a claimant is able to spend a substantial part of his day 23 engaged in pursuits involving the performance of physical functions that are 24 transferable to a work setting, a specific finding as to this fact may be 25 sufficient to discredit a claimant’s allegations.” Morgan v. Comm’r of Soc. Sec. 26 Admin., 169 F.3d 595, 600 (9th Cir. 1999); accord Vertigan v. Halter, 260 F.3d 27 1044, 1050 (9th Cir. 2001). 28 1 The record supports that Plaintiff admitted to driving a motor vehicle 2 and chopping wood, but the activities took place both prior to February 1, 3 2017 and after. [AR 191, 225, 489.] The ALJ fails to explain why he 4 discounted Plaintiff’s allegations regarding his subjective symptoms and 5 functional limitations based on those activities prior to February 1, 2017 but 6 not after. Further, the fact that Plaintiff admitted to driving a motor vehicle 7 and chopping wood is not inconsistent with his allegations because the record 8 does not show that such activities consumed a substantial part of Plaintiff’s 9 day. See Morgan, 169 F.3d at 600. This reason is not a clear and convincing 10 reason, supported by substantial evidence, to discount Plaintiff’s subjective 11 statements. 12 The ALJ found that the treatment notes “partially” support Plaintiff’s 13 allegations of chronic pain and fatigue. [AR 21.] The ALJ did not specify 14 what treatment notes were inconsistent with Plaintiff’s allegations and what 15 parts of Plaintiff’s allegations were not credible. Further, to the extent the 16 ALJ discounted Plaintiff’s subjective statements due to a lack of supporting 17 objective medical evidence, this reason cannot form the sole basis for 18 discounting symptom testimony. See Burch, 400 F.3d at 681 (“Although lack 19 of medical evidence cannot form the sole basis for discounting pain testimony, 20 it is a factor that the ALJ can consider in his credibility analysis.”). 21 To the extent the Commissioner argues that the ALJ properly 22 discounted Plaintiff’s testimony prior to February 1, 2017 due to conservative 23 treatment, the argument is rejected. The conservative nature of a claimant’s 24 treatment may factor into the evaluation of a claimant’s subjective 25 complaints. See Tommasetti, 533 F.3d at 1039-40. The ALJ mentioned 26 avoidance of sun exposure and the use of topical ointments for a rash and did 27 not appear to discount Plaintiff’s subjective statements based on his 28 treatment of his rash. [AR 20.] Even if he did, this reason would not be a 1 clear and convincing reason, supported by substantial evidence, to discount 2 Plaintiff’s subjective statements. The rash was a side effect from a medication 3 that he briefly took for his rheumatoid arthritis, and Plaintiff did not allege 4 pain or functional limitations due to the rash. [AR 254-55, 451, 454.] 5 The Commissioner argues that the ALJ noted that Plaintiff was 6 noncompliant with specific instructions from his doctors that he avoid alcohol. 7 [JS at 2 (citing AR 20, 250, 259, 265, 406, 415, 417, 426, 439).] An ALJ “may 8 consider . . . unexplained or inadequately explained failure . . . to follow a 9 prescribed course of treatment.” See Molina, 674 F.3d at 1112. The ALJ did 10 mention that Plaintiff was instructed to avoid alcohol, with admitted 11 instances of non-compliance, but did not appear to discount Plaintiff’s 12 subjective statements based on such non-compliance. [AR 20.] Even 13 assuming he did, this reason is not clear and convincing, supported by 14 substantial evidence, because the record indicates that Plaintiff “may be 15 drinking in excess” even after February 1, 2017 [AR 515] and the ALJ did not 16 explain why the non-compliance would erode Plaintiff’s credibility prior to 17 February 1, 2017 but not after. 18 In sum, the Court concludes that the ALJ failed to properly evaluate 19 Plaintiff’s allegations regarding his subjective symptoms and functional 20 limitations prior to February 1, 2017. Accordingly, remand is warranted on 21 this issue. On remand, the ALJ should re-evaluate Plaintiff’s allegations 22 regarding his subjective symptoms and functional limitations prior to 23 February 1, 2017, and if appropriate, provide clear and convincing reasons, 24 supported by substantial evidence, for discounting Plaintiff’s allegations.6 25 6 Plaintiff also contends that the ALJ failed to adequately consider the 26 lay testimony of Plaintiff’s sister, Karen S., for the period prior to February 1, 27 2017. [JS 19-20.] Given that the ALJ did not mention her testimony for the period prior to February 1, 2017, the Court agrees. See Dodrill v. Shalala, 12 28 F.3d 915, 919 (9th Cir. 1993) (“If the ALJ wishes to discount the testimony of 1 Plaintiff contends that the ALJ also erred at step five because the step 2 five finding was based on the ALJ’s erroneous determination that Plaintiff 3 had the RFC for light work prior to February 1, 2017. [JS at 27.] In light of 4 the fact that the Court is remanding the case for the reasons set forth above, 5 the ALJ shall proceed through the sequential steps and, if necessary, 6 reconsider this issue on remand. 7 Plaintiff requests that the case be remanded for an award of benefits. 8 [JS at 29.] The Court recognizes that it has the authority to do so but finds 9 that such relief is not warranted here, because it is not clear that Plaintiff 10 was disabled prior to February 1, 2017, and if so, when he became disabled. 11 See Trevizo, 871 F.3d at 682. 12

19 the lay witnesses, he must give reasons that are germane to each witness.”). 20 Contrary to the Commissioner’s argument, the error is not harmless. [JS at 21 25.] The ALJ did not give sufficient reasons for discounting Plaintiff’s subjective allegations prior to February 1, 2017; therefore, even assuming the 22 lay testimony was similar to Plaintiff’s allegations, it does not follow that the 23 ALJ gave germane reasons for discounting the testimony of Karen S. See Valentine, 574 F.3d at 694 (“In light of our conclusion that the ALJ provided 24 clear and convincing reasons for rejecting [the claimant’s] own subjective 25 complaints, and because [the lay witness’s] testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting 26 [the lay witness’s] testimony.”). On remand, the ALJ should re-evaluate the 27 testimony of Karen S., and if appropriate, provide germane reasons for discounting her testimony regarding the period prior to February 1, 2017. 28 V. CONCLUSION For the reasons set forth above, the decision of the Commissioner is 2 reversed, and this matter is remanded for further proceedings consistent with this Memorandum Opinion. 4 It is further ordered that the Clerk of the Court serve copies of this > Memorandum Opinion and Order and the Judgment on counsel for both 6 parties. 7 5 | DATED: July 27, 2020 Pala Lrna hoe _ 9 PATRICIA DONAHUE 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17