FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Apr 10, 2023 3 SEAN F. MCAVOY, CLERK 4
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 ERNEST L., NO: 22-CV-3060-RMP 8 Plaintiff, ORDER GRANTING IN PART 9 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 10 COMMISSIONER OF SOCIAL REMANDING FOR FURTHER SECURITY, PROCEEDINGS 11 Defendant. 12
13 BEFORE THE COURT, without oral argument, are cross-motions for 14 summary judgment from Plaintiff Ernest L.1, ECF No. 10, and Defendant the 15 Commissioner of Social Security (the “Commissioner”), ECF No. 11. Plaintiff 16 seeks judicial review, pursuant to 42 U.S.C. §§ 405(g) of the Commissioner’s denial 17 of his claim for Social Security Income (“SSI”) under Title XVI of the Social 18 Security Act (the “Act”). See ECF No. 10 at 2. 19 20 1 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first 21 1 Having considered the parties’ motions, the administrative record, and the 2 applicable law, the Court is fully informed. For the reasons set forth below, the
3 Court grants in part Plaintiff’s Motion for Summary Judgment, denies summary 4 judgment for the Commissioner, and remands for further proceedings. 5 BACKGROUND
6 General Context 7 Plaintiff applied for SSI on approximately December 18, 2019, alleging an 8 onset date of November 1, 2019. Administrative Record (“AR”)2 225. Plaintiff was 9 50 years old on the alleged disability onset date and asserted that he was unable to
10 work due to central spinal cord syndrome, body numbness, body weakness, and a 11 broken collarbone. AR 235, 261. Plaintiff’s application was denied initially and 12 upon reconsideration, and Plaintiff requested a hearing. See AR 123–25.
13 On May 14, 2021, Plaintiff appeared for a hearing held by Administrative 14 Law Judge (“ALJ”) Joseph Hajjar, by teleconference, from Cleveland, Ohio. AR 15 61–63. Plaintiff was represented by a non-attorney representative. AR 51. The ALJ 16 heard from Plaintiff as well as vocational expert Kathleen Byrnes, who participated
17 telephonically. AR 51–89. ALJ Hajjar issued an unfavorable decision on June 23, 18 2021, and the Appeals Council denied review. AR 1−6, 24. 19 / / /
21 2 1 ALJ’s Decision 2 Applying the five-step evaluation process, ALJ Hajjar found:
3 Step one: Plaintiff has not engaged in substantial gainful activity since 4 December 18, 2019, the application date. AR 17. 5 Step two: Plaintiff has the following severe impairments that are medically
6 determinable: degenerative disc disease and upper extremity fracture, pursuant to 20 7 C.F.R. § 416.920(c). AR 17. The ALJ further found that Plaintiff has non-severe 8 diabetes mellitus and memorialized that he considered both Plaintiff’s severe and 9 non-severe impairments in his decision. AR 17.
10 Step three: The ALJ concluded that Plaintiff does not have an impairment, or 11 combination of impairments, that meets or medically equals the severity of one of 12 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
13 416.920(d), 416.925, and 416.926). AR 17. In reaching this conclusion, the ALJ 14 considered whether Plaintiff’s impairments meet listing 1.15 (disorders of the 15 skeletal spine resulting in compromise of a nerve root); 1.18 (abnormality of a major 16 joint or joints in any extremity), and 1.23 (non-healing or complex fracture of an
17 upper extremity). AR 18–19. 18 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff has 19 the RFC to perform light work as defined in 20 C.F.R. § 416.967(b) except that he
20 can frequently push/pull with his bilateral upper extremities. AR 20. He can 21 occasionally reach overhead bilaterally. AR 20. For all other reaching, he can 1 frequently reach in all directions, bilaterally. AR 20. He can frequently handle and 2 finger items, bilaterally. AR 20. The claimant can climb ramps and stairs
3 occasionally, never climb ladders, ropes, or scaffolds, stoop frequently, kneel 4 frequently, crouch frequently, and crawl frequently. AR 20. The claimant can 5 occasionally work in extreme cold. AR 20.
6 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements 7 concerning the intensity, persistence, and limiting effects of his alleged symptoms 8 were inconsistent with aspects of the medical record. AR 21. 9 Step four: The ALJ found that Plaintiff is unable to perform past relevant
10 work. AR 22 (citing 20 C.F.R. § 416.965). 11 Step five: The ALJ found that Plaintiff was 51 years old, which is defined as 12 an individual closely approaching advanced age, on the date that the application was
13 filed. AR 22 (citing 20 C.F.R. § 416.963). The ALJ further found that Plaintiff has 14 a GED high school equivalency education and that transferability of job skills is not 15 material to the determination of disability because using the Medical-Vocational 16 Rules as a framework supports a finding that Plaintiff is “not disabled,” whether or
17 not the claimant has transferable job skills. AR 22 (citing SSR 82-41 and 20 C.F.R. 18 Part 404, Subpart P, Appendix 2). The ALJ found that given Plaintiff’s age, 19 education, work experience, and RFC, Plaintiff can make a successful adjustment to
20 other work that exists in significant numbers in the national economy. AR 22–23. 21 Finally, the ALJ recounted that the VE identified the following representative 1 occupations that Plaintiff would be able to perform with the RFC: Cafeteria 2 Attendant (light, unskilled, with around 29,000 jobs nationally);
3 Cleaner/Housekeeper (light, unskilled work, with around 221,000 jobs nationally); 4 and Marker (light, unskilled work with around 129,000 jobs nationally). AR 49. 5 The ALJ concluded that Plaintiff has not been disabled within the meaning of the
6 Act at any time since Plaintiff filed his SSI application on December 18, 2019. AR 7 23. 8 Through counsel, D. James Tree, Plaintiff sought review before this Court. 9 ECF No. 1.
10 LEGAL STANDARD 11 Standard of Review 12 Congress has provided a limited scope of judicial review of the
13 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 14 Commissioner’s denial of benefits only if the ALJ’s determination was based on 15 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 16 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s]
17 determination that a claimant is not disabled will be upheld if the findings of fact are 18 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 19 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere
20 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 21 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir. 1 1989). Substantial evidence “means such evidence as a reasonable mind might 2 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
3 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the 4 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 5 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the
6 record, not just the evidence supporting the decisions of the Commissioner. 7 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 8 A decision supported by substantial evidence still will be set aside if the 9 proper legal standards were not applied in weighing the evidence and making a
10 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 11 1988). Thus, if there is substantial evidence to support the administrative findings, 12 or if there is conflicting evidence that will support a finding of either disability or
13 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 14 812 F.2d 1226, 1229–30 (9th Cir. 1987). 15 Definition of Disability 16 The Social Security Act defines “disability” as the “inability to engage in any
17 substantial gainful activity by reason of any medically determinable physical or 18 mental impairment which can be expected to result in death or which has lasted or 19 can be expected to last for a continuous period of not less than 12 months.” 42
20 U.S.C. § 423(d)(1)(A). The Act also provides that a claimant shall be determined to 21 be under a disability only if his impairments are of such severity that the claimant is 1 not only unable to do his previous work, but cannot, considering the claimant’s age, 2 education, and work experiences, engage in any other substantial gainful work
3 which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Thus, the 4 definition of disability consists of both medical and vocational components. Edlund 5 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
6 Sequential Evaluation Process 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 9 determines if he is engaged in substantial gainful activities. If the claimant is
10 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. § 11 416.920(a)(4)(i). 12 If the claimant is not engaged in substantial gainful activities, the decision
13 maker proceeds to step two and determines whether the claimant has a medically 14 severe impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If 15 the claimant does not have a severe impairment or combination of impairments, the 16 disability claim is denied.
17 If the impairment is severe, the evaluation proceeds to the third step, which 18 compares the claimant’s impairment with listed impairments acknowledged by the 19 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §
20 416.920(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment 21 1 meets or equals one of the listed impairments, the claimant is conclusively presumed 2 to be disabled.
3 If the impairment is not one conclusively presumed to be disabling, the 4 evaluation proceeds to the fourth step, which determines whether the impairment 5 prevents the claimant from performing work that he has performed in the past. If the
6 claimant can perform his previous work, the claimant is not disabled. 20 C.F.R. § 7 416.920(a)(4)(iv). At this step, the claimant’s RFC assessment is considered. 8 If the claimant cannot perform this work, the fifth and final step in the process 9 determines whether the claimant is able to perform other work in the national
10 economy considering his residual functional capacity and age, education, and past 11 work experience. 20 C.F.R. § 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 12 142 (1987).
13 The initial burden of proof rests upon the claimant to establish a prima facie 14 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 15 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 16 is met once the claimant establishes that a physical or mental impairment prevents
17 her from engaging in her previous occupation. Meanel, 172 F.3d at 1113. The 18 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 19 can perform other substantial gainful activity, and (2) a “significant number of jobs
20 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 21 F.2d 1496, 1498 (9th Cir. 1984). 1 ISSUES ON APPEAL 2 The parties’ motions raise the following issues regarding the ALJ’s decision:
3 1. Did the ALJ erroneously reject Plaintiff’s subjective complaints? 2. Did the ALJ erroneously fail to develop the record? 4 3. Did the ALJ erroneously reject a lay witness statement? 5
Subjective Symptom Testimony 6 Plaintiff argues that none of the three reasons offered by the ALJ for rejecting 7 Plaintiff’s testimony of disabling impairments meets the demanding clear and 8 convincing standard. ECF No. 10 at 7. 9 The Commissioner responds that the ALJ reasonably discounted Plaintiff’s 10 subjective complaints. ECF No. 11 at 4–5. 11 The Court addresses each reason in turn. 12 Objective Evidence 13 With respect to a purported conflict with the objective evidence, Plaintiff 14 argues that the ALJ misconstrued the note from Plaintiff’s one-month post-operative 15 appointment by surgeon Dr. Peter Grunert that Plaintiff had “‘made a remarkable 16 recovery from his central cord syndrome.’” ECF No. 10 at 7–8 (quoting AR 465). 17 Plaintiff asserts that the rest of Dr. Grunert’s treatment note shows that Plaintiff’s 18 recovery did not achieve a full recovery: 19 He still however [sic] has a disability mostly due to his spinal ataxia, 20 which causes an imbalanced gait. The patient also has residual weakness in his hands as well as impaired proprioception on the right 21 1 his spinal cord injury. The disability is severe enough to impact performing his usual daily activities. 2 Id. at 8 (quoting AR 465). Plaintiff asserts that he “did not claim to have had no 3 improvements following his initial injury, but instead that he continues to suffer 4 ongoing limitations that are prohibitive of sustain [sic] full-time employment, 5 including chronic pain, instability while standing and walking, and weakness in his 6 arms and hands.” Id. (citing AR 70, 72, 74–75). Plaintiff contends that the ALJ 7 erred in failing to articulate why Plaintiff’s “modest improvement with significant 8 ongoing limitations” is inconsistent with any specific complaint by Plaintiff. Id. at 9 8–9. 10 The Commissioner responds that there is no dispute that Plaintiff’s recovery 11 was incomplete because the ALJ found that Plaintiff had significant limitations 12 when assessing Plaintiff’s RFC. ECF No. 11 at 6 (citing AR 20). The 13 Commissioner continues that the ALJ, elsewhere in his decision, found Dr. 14 Grunert’s statement that Plaintiff was “disabled” unpersuasive, and Plaintiff does 15 not challenge this finding. Id. (citing AR 21; Carmickle v. Comm’r, 533 F.3d 16 1155, 1161 (9th Cir. 2008)). Lastly, the Commissioner argues that Plaintiff’s 17 citation to other treatment notes in the record is unavailing “because the ALJ is the 18 ‘final arbiter with respect to resolving ambiguities in the medical evidence.’” ECF 19 No. 11 at 7 (citing Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (internal 20 quotation omitted)). 21 1 In deciding whether to accept a claimant’s subjective pain or symptom 2 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d
3 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has 4 presented objective medical evidence of an underlying impairment ‘which could 5 reasonably be expected to produce the pain or other symptoms alleged.’”
6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 7 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there 8 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about 9 the severity of [his] symptoms only by offering specific, clear and convincing
10 reasons for doing so.” Smolen, 80 F.3d at 1281. 11 There is no allegation of malingering in this case. Plaintiff testified that, 12 when he returned to work briefly in July or August 2020, he could not climb
13 ladders, hang cabinets, or hang doors, all of which he was able to do as a finish 14 carpenter before his November 2019 injury. AR 59–62. Plaintiff testified that he 15 could not handle even the lighter duties of the new position that he was given with 16 the construction company in 2020 and that he was “struggling the whole time and
17 hurting in pain.” AR 63. Plaintiff estimated that he could not lift any more than 18 twenty pounds and struggled to pick up items such as screws off of the ground 19 because of numbness and stiffness in his fingers and hands. AR 64. He stated that
20 his hands also start to cramp and hurt after trying to hold a paintbrush “for too 21 long,” which was one of his duties before he was laid off in 2020. AR 64. 1 Plaintiff recalled that, when he tried working in 2020, he was in pain throughout 2 the day and was using Tylenol and ibuprofen “all day long.” AR 65.
3 In relevant part, the ALJ found that after Plaintiff injured his spinal 4 cord/neck on November 2, 2019, he had surgery and other treatments and was 5 discharged on November 21, 2019, with the following discharge summary from
6 Dr. Grunert: “‘Patient recovered significantly after initiation of cortisone therapy 7 and even more after the decompressive procedure. He was unable to form a fist and 8 walk when he was admitted, all of this is possible now. Incision healed well [sic] 9 Staples were removed.’” AR 21 (quoting AR 343). The ALJ further noted that
10 Plaintiff’s treatment note from a December 9, 2019 follow-up appointment with 11 Dr. Grunert “revealed, ‘The patient made a remarkable recovery from his central 12 cord syndrome. He mobilizes completely independently. His strength and sensation
13 improved significantly.’” AR 21 (quoting AR 465). The ALJ added, without 14 citation, that Plaintiff “fractured his left clavicle on January 18, 2020, but required 15 no surgery” and by “July 2020, he had a full range of motion in his neck.” AR 21. 16 As Plaintiff cites in his brief, and as the ALJ recorded earlier in his decision,
17 Dr. Grunert also noted on December 9, 2019, that Plaintiff “still has a disability 18 due to . . . spinal ataxia which causes an imbalanced gait” and still experiences 19 residual weakness in his hands and impaired proprioception. AR 19, 465; see ECF
20 No. 10 at 7–8. Therefore, while the ALJ reasoned that Plaintiff made a significant 21 or even remarkable recovery post-surgery, without qualification, the record cited 1 by the ALJ indicates that several symptoms persisted. AR 21, 465. The ALJ’s 2 reasoning does not acknowledge that the objective medical record shows persistent
3 symptoms. AR 465. Therefore, the Court finds that the ALJ did not fully account 4 for the evidence cited. 5 An ALJ’s material mischaracterization of the record can itself warrant
6 remand. See, e.g., Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 7 1999). The ALJ’s mischaracterization or cherry-picking here is material because 8 the omitted notes are consistent with Plaintiff’s testimony that he could not climb 9 ladders, hang cabinets, or hang doors; that he struggled to pick up items such as
10 screws off of the ground because of numbness and stiffness in his fingers and 11 hands; and that his hands started to cramp and hurt after trying to hold a paintbrush 12 “for too long.” AR 60–64. Moreover, the ALJ did not specify how the objective
13 medical record undermined any specific symptom testimony by Plaintiff. AR 21; 14 see Lambert v. Saul, 980 F.3d 1266, 1277–78 (9th Cir. 2020) (reversing an ALJ’s 15 unfavorable decision due to the failure to identify which testimony and evidence 16 was not credible and which evidence contradicted claimant’s testimony). For all of
17 these reasons, conflict with the medical evidence was not a clear and convincing 18 reason to discount Plaintiff’s testimony. 19 Work
20 Plaintiff argues that substantial evidence does not support the ALJ’s 21 reasoning that Plaintiff’s return to work undermines Plaintiff’s symptom 1 testimony. ECF No. 10 at 8. Plaintiff asserts that the ALJ ignored evidence that 2 Plaintiff’s work attempt in 2020 did not amount to “substantial gainful activity.”
3 Id. at 10. Plaintiff recites that he: obtained the job with his former employer with 4 help from his son, who also works there; struggled to complete the job duties; and, 5 during less than two months of work, had to take short breaks every 30 to 45
6 minutes due to pain and muscle spasms and took “one or two” days off due to pain. 7 Id. (citing AR 63, 64, 72, 73). 8 The Commissioner responds that the ALJ legitimately considered that 9 Plaintiff’s attempt to work ended for reasons other than disability, namely COVID
10 shutdowns, in discounting Plaintiff’s subjective complaints. ECF No. 11 at 7–8 11 (citing AR 59, 21, 253 as evidence that Plaintiff stated that he was laid off when 12 COVID “was shutting everything down,” and thereafter received unemployment).
13 The Commissioner maintains that even work that did not amount to substantial 14 gainful activity could show that Plaintiff is able “to do more work than [he] 15 actually did,” and “the ALJ reasonably? found Plaintiff’s return to work and 16 discharge for reasons other than disability undermined his allegations of disabling
17 limitations.” Id. at 8 (citing 20 C.F.R. § 416.971). Lastly, the Commissioner 18 submits that the ALJ was not required to discuss “every caveat” that Plaintiff had 19 about his return to work because the ALJ properly discounted his testimony
20 elsewhere in the decision. Id. at 8–9 (citing Smartt, 53 F.4th at 500 n.3). 21 1 An ALJ may properly reject a claimant’s allegation of an inability to work 2 where there is evidence that he stopped working for a reason other than disability.
3 See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (finding that claimant 4 stopped working because he was laid off). In Bruton, the claimant worked for 5 nearly thirty years as a machinist and was injured on the job a week and a half
6 before being laid off. 268 F.3d at 826. The claimant did not seek medical 7 attention for his injury for five months after he was laid off, and told at least one of 8 his doctors that he left his job because he was laid off, rather than because he was 9 injured. Id. at 828. The Ninth Circuit held that the ALJ reasonably relied on the
10 reason that the claimant’s employment ended in discrediting Plaintiff’s subjective 11 symptom testimony. Id. 12 The ALJ found that: Plaintiff “forthrightly testified he returned to work
13 performing carpentry at the light level of exertion in 2020. He testified he stopped 14 working because he was laid off due to the COVID shutdowns. He did not stop 15 working because of his impairments. The record shows he received over $31,000 16 in Unemployment payments in 2020.” AR 21.
17 The evidence in the present record concerning Plaintiff’s return to work is 18 that Plaintiff worked in approximately summer 2020 for less than two months at 19 the same construction company where he had worked prior to his injury. AR 59–
20 63. Plaintiff testified that he had difficulty finding work that would accommodate 21 him after his injury until his son talked to the boss at Plaintiff’s former employer, 1 where his son also worked. AR 63. Plaintiff testified that he struggled to complete 2 the lighter duties of the work that he undertook in 2020 due to hand issues and pain
3 and that he took frequent breaks due to his symptoms that “they weren’t liking[.]”. 4 AR 63–64, 72. There is no indication in the record as to whether the construction 5 company laid off everyone due to COVID shutdowns or whether Plaintiff was laid
6 off in part because of his performance. The circumstances of Plaintiff’s brief 7 return to work in a limited capacity, at reduced pay, approximately nine months 8 after his injury and surgery, are distinguishable from Bruton, 268 F.3d at 826, 9 where the claimant did not even seek medical care for his injury for five months
10 after he was laid off. 11 Furthermore, the ALJ agreed with Plaintiff that he could not return to any 12 previous work, and the ALJ does not specify which alleged limitations regarding
13 Plaintiff’s return to work the ALJ is discounting. AR 21–22. Given the evidence 14 concerning Plaintiff’s brief return to work, the ALJ’s assumption that Plaintiff 15 could have continued to work had COVID shutdowns not resulted in a layoff is 16 speculative and not supported by substantial evidence. See SSR 86-8, 1986 SSR
17 LEXIS 15, at *22 (“Reasonable inferences may be drawn, but presumptions, 18 speculations and suppositions should not be substituted for evidence.”). The Court 19 does not find Plaintiff’s return to work to amount to a specific, clear, and
20 convincing reason for discounting Plaintiff’s allegations. 21 1 Daily Activities 2 Plaintiff argues that the ALJ’s reliance on a brief mention of Plaintiff
3 injuring himself while helping a friend rip out bathroom tile is in error because 4 there is no indication that Plaintiff regularly undertook tile work or that the work 5 he did was inconsistent with his claimed limitation. ECF No. 10 at 11–12 (citing
6 AR 530, 588; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). Plaintiff 7 contends that the tile work appears to have been done in a self-directed, rather than 8 workplace, environment where Plaintiff could take breaks, schedule tasks, and take 9 medication as needed. Id. at 11.
10 The Commissioner responds that the ALJ reasonably found that Plaintiff’s 11 ability to remove tiles conflicted with Plaintiff’s alleged inability to work due to 12 hand pain and numbness. ECF No. 11 at 9.
13 The ALJ found that “[w]hile Plaintiff alleged difficulties with his hands, the 14 record shows he was removing tiles in March 2021.” AR 21 (citing AR 530). The 15 medical treatment record that the ALJ cited memorializes that Plaintiff went to the 16 ER on March 8, 2021, for an eye injury and sought further treatment from a family
17 medicine practitioner on March 9, 2021. AR 530. Plaintiff reported that he was 18 “helping remove tile” two days ago, and “a piece of debris flew up, hitting him in 19 left eye.” AR 530. Plaintiff’s emergency room treatment notes indicate that
20 Plaintiff reported “helping a friend out who was busting out bathroom tile” on 21 March 7, 2021. AR 588. The Court does not find this single instance of Plaintiff 1 somehow involving himself in a friend’s tile removal project for an unspecified 2 amount of time to amount to a clear and specific reason to discount Plaintiff’s
3 allegations that his symptoms prevent him from sustaining full-time work. 4 Consequently, the ALJ erred by failing to provide a specific, clear, and 5 convincing reason to discount Plaintiff’s subjective symptom testimony. In the
6 RFC that the ALJ formulated, Plaintiff can frequently push/pull with his bilateral 7 upper extremities, can frequently reach in all directions, and can frequently handle 8 and finger items, bilaterally. AR 20. This RFC may have been formulated 9 differently had Plaintiff’s allegations regarding pain and numbness in his hands
10 been fully credited. Therefore, the Court cannot determine that the error was 11 harmless, as Plaintiff alleged limitations that were disabling. Therefore, the Court 12 concludes that remand is necessary on this issue.
13 Other Issues 14 Plaintiff raises additional issues regarding the ALJ’s duty to develop the 15 record and the treatment of a lay witness opinion. ECF No. 10 at 2. However, 16 remand is appropriate based on the ALJ’s error in his assessment of Plaintiff’s
17 subjective symptoms, and, in the interest of judicial economy. the Court does not 18 decide whether the other issues would independently warrant relief. 19 Type of Remand
20 Lastly, Plaintiff asks the Court to remand his claim for a benefits award. ECF 21 No. 10 at 2. The Court may remand a case “either for additional evidence and 1 findings or to award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 2 1996). When the Court reverses an ALJ’s decision, “the proper course, except in
3 rare circumstances, is to remand to the agency for additional investigation or 4 explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations 5 omitted). However, the Ninth Circuit created a “test for determining when evidence
6 should be credited and an immediate award of benefits directed.” Harman v. Apfel, 7 211 F.3d 1172, 1178 (9th Cir. 2000). The Ninth Circuit has endorsed an award for 8 benefits where: 9 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant's] evidence, (2) there are no outstanding 10 issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be 11 required to find the claimant disabled were such evidence credited.
12 Smolen, 80 F.3d at 1292. 13 In this case, the Court has determined that the ALJ committed harmful error in 14 his assessment of Plaintiff’s subjective testimony. However, the record in this 15 matter does not clearly support a finding of disability. Plaintiff’s acceptance of 16 unemployment benefits following his work attempt in 2020 is one factor that an ALJ 17 could consider in assessing Plaintiff’s symptom allegations, if the record showed 18 that Plaintiff was holding himself out as available for full-time rather than part-time 19 work. See Carmickle v. Comm’r, 533 1155, 1162 (9th Cir. 2008) (holding that
20 holding oneself out as available for full-time work while receiving unemployment 21 benefits is inconsistent with disability allegations). In addition, there are other 1 activities in the record that may undermine Plaintiff’s subjective complaints, such as 2 Plaintiff’s report to a physical therapist on February 24, 2020, that he had been
3 “working with a buddy on his trailer, replacing linoleum, in addition to working 4 around his home.” AR 483; see also AR 485. Therefore, remand for 5 reconsideration of Plaintiff’s subjective symptom testimony is appropriate. An ALJ
6 shall further determine on remand whether the record requires supplementation and 7 shall reassess the lay witness statement alongside all of the evidence. See Program 8 Operations Manual System (POMS) GN 03106.036 Court Remand Orders, 9 https://secure.ssa.gov/poms.nsf/lnx/0203106036 (last visited Apr. 5, 2023) (a court
10 order vacating a prior decision and remanding the case voids the prior decision and 11 thus returns the case to the status of a pending claim). 12 CONCLUSION
13 Having reviewed the record and the ALJ’s findings, this Court concludes that 14 the ALJ’s decision contains a legal error. Accordingly, IT IS HEREBY 15 ORDERED that: 16 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is GRANTED
17 IN PART and DENIED IN PART. 18 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is DENIED. 19 3. The decision of the Commissioner is REVERSED, and this matter is
20 REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for 21 further proceedings consistent with this Order. 1 4. Judgment shall be entered for Plaintiff. 2 IT IS SO ORDERED. The District Court Clerk is directed to enter this
3 Order, enter judgment as directed, provide copies to counsel, and close the file in 4 this case. 5 DATED April 10, 2023.
6 s/ Rosanna Malouf Peterson 7 ROSANNA MALOUF PETERSON Senior United States District Judge 8 9 10 11 12 13 14 15 16
17 18 19
20 21