1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 NICOLE M. CASTRO, ) Case No. CV 19-01026-AS 13 ) Plaintiff, ) MEMORANDUM OPINION AND 14 ) v. ) ORDER OF REMAND 15 ) ANDREW M. SAUL, Commissioner ) 16 of the Social Security ) Administration,1 ) 17 ) Defendant. ) 18 ) 19 For the reasons discussed below, IT IS HEREBY ORDERED that, 20 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded 21 for further administrative action consistent with this Opinion. 22 23 24 25 26 27 28 1 Andrew M. Saul is now the Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Nancy A. Berryhill in this case. See Fed.R.Civ.P. 25(d). 1 PROCEEDINGS 2 3 On February 11, 2019, Plaintiff filed a Complaint seeking review of 4 the denial of her application for Disability Insurance Benefits. 5 (Docket Entry No. 1). The parties have consented to proceed before the 6 undersigned United States Magistrate Judge. (Docket Entry Nos. 11-12). 7 On July 23, 2019, Defendant filed an Answer along with the 8 Administrative Record (“AR”). (Docket Entry Nos. 17-18). On November 9 21, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting 10 forth their respective positions regarding Plaintiff’s claim. (Docket 11 Entry No. 26). 12 13 The Court has taken this matter under submission without oral 14 argument. See C.D. Cal. L.R. 7-15. 15 16 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 17 18 On February 8, 2016, Plaintiff, formerly employed as an 19 administrative assistant and receptionist (see AR 44-45, 147-52, 195- 20 97), filed an application for Disability Insurance Benefits, alleging an 21 inability to work because of a disabling condition since September 1, 22 2015. (See AR 126-27). The Commissioner denied Plaintiff’s 23 application, initially and on reconsideration. (AR 66-75). On November 24 1, 2017, Plaintiff, represented by counsel, testified at a hearing 25 before Administrative Law Judge (“ALJ”), James Carberry, who also heard 26 testimony from and vocational expert Ms. Cicero. (See AR 37-64). 27 28 1 On January 10, 2018, the ALJ issued a decision denying Plaintiff’s 2 application. (See AR 21-30). Applying the five-step sequential 3 process, the ALJ found at step one that Plaintiff had not engaged in 4 substantial gainful activity since September 1, 2015. (AR 23). At step 5 two, the ALJ determined that Plaintiff had the following severe 6 impairments -- “degenerative disc disease status post cervical fusion, 7 left shoulder degenerative joint disease, and fibromyalgia.” (AR 24).2 8 At step three, the ALJ determined that Plaintiff did not have an 9 impairment or combination of impairments that met or equaled the 10 severity of one of the listed impairments.3 (AR 25). The ALJ then 11 assessed Plaintiff’s residual functional capacity (“RFC”)4 and concluded 12 that she could perform light work5 with the following limitations: 13 14 15 16 17 2 The ALJ found that Plaintiff’s other impairments –- irritable bowel syndrome, migraines, depression, and anxiety – were nonsevere. 18 (AR 24-25). 19 3 The ALJ specifically considered whether Plaintiff’s medically determinable physical impairments met the requirements of listings 1.02 20 (major dysfunction of a joint(s)), and 1.04 (disorders of the spine). The ALJ also considered whether Plaintiff’s chronic pain syndrome met or 21 was equivalent to any physical or mental impairment listing. (AR 25). 22 4 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 23 C.F.R. § 404.1545(a)(1). 24 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 25 Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves 26 sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you 27 must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, 28 unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). 1 [Plaintiff] can lift, carry, push and pull 20 pounds 2 occasionally and 10 pounds frequently; can stand and walk 2 3 hours out of 8 hours; can sit for 6 hours out of 8 hours; can 4 never climb ladders, ropes or scaffolds; can occasionally 5 climb ramps and stairs; can occasionally balance, stoop, 6 kneel, crouch and crawl; and can frequently reach overhead 7 and perform gross and fine manipulation. 8 (AR 25-28). 9 At step four, the ALJ determined that Plaintiff was able to perform 10 past relevant work as an administrative assistant and receptionist as 11 generally performed (AR 28-29), and therefore found that Plaintiff was 12 not under a disability led within the meaning of the Social Security Act 13 from the alleged disability onset date, September 1, 2015, to the date 14 of the decision. (AR 29-30). 15 16 The Appeals Council denied Plaintiff’s request for review on 17 December 27, 2018. (See AR 5-9). Plaintiff now seeks judicial review 18 of the ALJ’s decision, which stands as the final decision of the 19 Commissioner. See 42 U.S.C. §§ 405(g), 1383(c). 20 21 STANDARD OF REVIEW 22 23 This Court reviews the Commissioner’s decision to determine if it 24 is free of legal error and supported by substantial evidence. See 25 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 26 evidence” is more than a mere scintilla, but less than a preponderance. 27 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 28 whether substantial evidence supports a finding, “a court must consider 1 the record as a whole, weighing both evidence that supports and evidence 2 that detracts from the [Commissioner’s] conclusion.” Id. As a result, 3 “[w]here the evidence can reasonably support either affirming or 4 reversing [the ALJ’s] decision, [a court] may not substitute [its] 5 judgment for that of the [ALJ].” Id. at 1010 (citations omitted).6 6 7 PLAINTIFF’S CONTENTION 8 9 Plaintiff alleges that the ALJ erred in rejecting Plaintiff’s 10 testimony about her symptoms and limitations. (See Joint Stip. at 4-12, 11 17-18). 12 13 DISCUSSION 14 15 After consideration of the record as a whole, the Court finds that 16 Plaintiff’s claim of error warrants a remand for further consideration. 17 18 A. The ALJ Failed To Provide Clear and Convincing Reasons For Rejecting Plaintiff’s Subjective Symptom Testimony 19 20 Plaintiff asserts that the ALJ did not provide clear and convincing 21 reasons for rejecting Plaintiff’s testimony about her symptoms and 22 limitations. (See Joint Stip. at 4-12, 17-18). Defendant asserts that 23 the ALJ provided specific and permissible reasons for finding Plaintiff 24 not fully credible. (See Joint Stip. at 12-17). 25 26 6 The harmless error rule applies to the review of 27 administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 1 1. Legal Standard 2 3 When assessing a claimant’s credibility regarding subjective pain 4 or intensity of symptoms, the ALJ must engage in a two-step analysis. 5 Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ 6 must determine if there is medical evidence of an impairment that could 7 reasonably produce the symptoms alleged. Id., (citing Garrison v. 8 Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “In this analysis, the 9 claimant is not required to show that her impairment could reasonably 10 be expected to cause the severity of the symptom she has alleged; she 11 need only show that it could reasonably have caused some degree of the 12 symptom.” Id. (emphasis in original) (citation omitted). “Nor must a 13 claimant produce objective medical evidence of the pain or fatigue 14 itself, or the severity thereof.” Id. (citation omitted). 15 16 17 If the claimant satisfies this first step, and there is no evidence 18 of malingering, the ALJ must provide specific, clear and convincing 19 reasons for rejecting the claimant’s testimony about the symptom 20 severity. Trevizo, 871 F.3d at 678 (citation omitted); see also Smolen, 21 80 F.3d at 1284 (“[T]he ALJ may reject the claimant’s testimony 22 regarding the severity of her symptoms only if he makes specific 23 findings stating clear and convincing reasons for doing so.”); Robbins 24 v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ 25 makes a finding of malingering based on affirmative evidence thereof, 26 he or she may only find an applicant not credible by making specific 27 findings as to credibility and stating clear and convincing reasons for 28 each.”). “This is not an easy requirement to meet: The clear and 1 convincing standard is the most demanding required in Social Security 2 cases.” Garrison, 759 F.3d at 1015 (citation omitted). 3 4 Where, as here, the ALJ finds that a claimant suffers from a 5 medically determinable physical or mental impairment that could 6 reasonably be expected to produce her alleged symptoms, the ALJ must 7 evaluate “the intensity and persistence of those symptoms to determine 8 the extent to which the symptoms limit an individual’s ability to 9 perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”) 10 16-3p, 2017 WL 5180304, at *3.1 SSR 16–3p superseded SSR 96–7p and 11 eliminated the term “credibility” from the Agency’s sub-regulatory 12 policy. However, the Ninth Circuit has noted that SSR 16–3p 13 14 15 makes clear what [the Ninth Circuit’s] precedent already required: that assessments of an individual’s testimony by an 16 ALJ are designed to “evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a 17 medically determinable impairment(s) that could reasonably be expected to produce those symptoms, and not to delve into 18 wide-ranging scrutiny of the claimant’s character and apparent truthfulness. 19 20 Trevizo, 871 F.3d at 679 n.5 (quoting SSR 16–3p) (alterations omitted). 21 22 In discrediting the claimant’s subjective symptom testimony, the 23 ALJ may consider: “ordinary techniques of credibility evaluation, such 24 as . . . prior inconsistent statements concerning the symptoms, and 25 26 1 SSR 16-3p, which superseded SSR 96-7p, is applicable to this case, because SSR 16-3p, which became effective on March 28, 2016, was 27 in effect at the time of the Appeal Council’s December 27, 2018 denial of Plaintiff's request for review. Nevertheless, the regulations on 28 evaluating a claimant’s symptoms, including pain, see 20 C.F.R. §§ 404.1529 and 416.929, have not changed. 1 other testimony by the claimant that appears less than candid; 2 unexplained or inadequately explained failure to seek treatment or to 3 follow a prescribed course of treatment; and the claimant’s daily 4 activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 5 (citation omitted). Inconsistencies between a claimant’s testimony and 6 conduct, or internal contradictions in the claimant’s testimony, also 7 may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 8 2014); In addition, the ALJ may consider the observations of treating 9 and examining physicians regarding, among other matters, the functional 10 11 restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d at 12 1284; accord Burrell, 775 F.3d at 1137. However, it is improper for an 13 ALJ to reject subjective testimony based “solely” on its inconsistencies 14 with the objective medical evidence presented. Bray v. Comm’r of Soc. 15 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation omitted). 16 17 Further, the ALJ must make a credibility determination with 18 findings that are “sufficiently specific to permit the court to conclude 19 that the ALJ did not arbitrarily discredit claimant’s testimony.” 20 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation 21 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) 22 (“A finding that a claimant’s testimony is not credible must be 23 sufficiently specific to allow a reviewing court to conclude the 24 adjudicator rejected the claimant’s testimony on permissible grounds and 25 did not arbitrarily discredit a claimant’s testimony regarding pain.”) 26 (citation omitted). Although an ALJ’s interpretation of a claimant’s 27 testimony may not be the only reasonable one, if it is supported by 28 8 1 substantial evidence, “it is not [the court’s] role to second-guess it.” 2 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 3 4 2. Plaintiff’s Subjective Statements and Testimony 5 6 Plaintiff made the following statements in an Exertion 7 Questionnaire dated April 13, 2016 (see AR 160-62): 8 She lives with her husband in a house. (AR 160). 9 The symptoms that prevent her from carrying out a 10 normal workday are difficulty sitting (she gets sharp pains if not careful with how she sits), difficulty retaining 11 information, low energy, inability to follow through with tasks, and difficulty concentrating/keeping focus. (AR 12 160). 13 On an average day, she showers, cleans her house, washes dishes, and runs errands, all of which make her feel 14 extremely fatigued and ready for a nap. She does her own 15 grocery shopping a couple of times a week. Cleaning her house, which includes straightening up, vacuuming, washing 16 dishes, dusting, sweeping and mopping, takes her all day. She is able to do 15 to 20 minutes of housework before she 17 needs a break due to pain. She can do gardening for 15 to 20 minutes before her back starts hurting and she needs to 18 take a break; it may take her a couple of days to complete the gardening. Before becoming disabled, she was able to do 19 these chores without becoming tired and losing interest. She is able to drive a car for 10 minutes from her house 20 (under a doctor’s orders) and comfortably for 15 to 20 minutes under other circumstances. (AR 160-62). 21 When asked how far she walks and how long it takes her 22 to walk that distance, she stated that, at this point, she does not exercise except for light yoga. She is not able to 23 climb stairs. She is able to lift 5 to 10 pounds. She is able to carry a jug of milk to the grocery store counter or 24 grocery cart. (AR 160-61). 25 She sleeps for 5 to 6 hours a night. She requires a 26 rest period or nap of 15 to 30 minutes during the day. She takes medications -- gabapentin, cyclebenzaprine, 27 duloxetine, and hydrocodone – for her condition. She uses a brace as much as possible as a result of her spinal fusion 28 surgery in February 2016. (AR 162) 1 Plaintiff gave the following testimony at the administrative 2 hearing on November 1, 2017 (see AR 40-56, 58-62): 3 She lives with her husband in a house. She does not have any children. She completed high school. She did not 4 go to college; she went to a vocational dental school. She 5 is 5 feet, 5 inches tall, and weighs approximately 168 pounds (she had lost 23 pounds). She worked in a dental 6 office, but became allergic to the chemicals and the latex gloves (her doctor told her to find another profession). 7 She last worked (through a temporary employment agency) in 2015 for two months as an administrative assistant at 8 Innovative Bedding; she was “let go” (not fired) from that position because she got migraine headaches which caused her 9 to vomit and urinate on herself, and because her severe pain caused her to be forgetful and to misunderstand things. 10 Before working at Innovative Bedding, she worked (through a temporary employment agency) as an administrative assistant 11 at the following businesses: Argo Spring, Cordova Bolt (where she also worked as a receptionist and was not able to 12 function due to severe pain in her right arm and lower back), WTF Communications (the business shut down), All-Pro 13 Precision (she left for a better job), and MGM Converters as a receptionist (the business shut down). When she worked as 14 a receptionist and as an administrative assistant, she had 15 to lift about 30 pounds. (AR 40-41, 43-47, 52-53, 55-56). 16 She had her first surgery in November 2014 following longstanding shoulder pain which caused her sleep issues. 17 After X-rays were taken, her doctors initially told her she had arthritis, and then Dr. Haffessey told her that she had 18 fibromalgia. Following additional tests and an MRI, she had surgery, however, the surgery did not result in the relief 19 she was looking for. (AR 49-50). 20 She had her second surgery in February 2016. The second surgery also did not work, and maybe made things 21 worse, because she is in constant pain. (AR 50). 22 For her back, she walked, did physical therapy, put heat on (her lower back), and rode a stationary bike 23 (approximately 7 minutes). (AR 42-43). 24 25 She is unable to work as a receptionist because of her migraine headaches (she has to stay in bed), and her 26 inabilities to sit, move around, file, do repetitive movements, and her need for naps. She gets migraine 27 headaches lasting 1 to 3 days every other week. For relief, she lies down in a dark room, takes medication, tries to 28 sleep, and uses an ice pack. She spoke to the neurologist who performed her surgeries about her migraine headaches 1 which became worse after the surgeries. She has never gone to the hospital as a result of her migraine headaches. (AR 2 54, 59-60-61). 3 She is unable to work in a factory or as a packer because she has a sharp pain when she does repetitive 4 motions (such as picking up the phone or bending) or when 5 she stretches her arm out (the pain makes her unable to think and to focus on the work), because she can only sit 6 and stand for approximately 15 to 20 minutes, and because she can only lift 5 pounds. (AR 47-48). 7 For her back, she walked, did physical therapy, put 8 heat on (her lower back), and rode a stationary bike (approximately 7 minutes). (AR 42-43). 9 She is able to walk for 15 to 20 minutes. She walks 10 around the block (a huge block) of her house. She is able to lift 5 pounds. (AR 42). 11 She is able to drive (she drove to the hearing), but 12 has some difficulty turning to her right so she generally does not drive on the freeway and does not drive much. She 13 is able to fill the car with gasoline, but she does not do it much. She sometimes dresses herself (she dressed herself 14 for the hearing). She is able to take showers, but she has 15 pain, difficulty balancing, and difficulty putting her hands up on her head to wash her hair. She and her husband both 16 do the shopping. She cooks dinner in the afternoon (for her husband), because she has to take a nap at some point. She 17 tidies up around the house. Her husband takes out the trash, but she will do it if she has to. She does not 18 travel because she does not have the money, and because it likely would be a waste due to her not feeling well. (AR 19 50-52, 54-55). 20 She sleeps about 4 or 5 hours a night because of insomnia, and takes about a 1 to 1 1/2 hour nap. She takes 21 naps because of fatigue and pain. Her doctor gave her medicine for insomnia. (AR 58-59). 22 23 24 25 26 27 28 1 3. The ALJ’s Credibility Findings 2 3 After briefly summarizing Plaintiff’s testimony (see AR 26),2 the 4 ALJ stated: “After careful consideration of the evidence, the 5 undersigned finds that the claimant’s medically determinable impairments 6 could reasonably be expected to produce the above alleged symptoms; 7 however, the claimant’s statements concerning the intensity, persistence 8 and limiting effects of these symptoms are not entirely consistent with 9 the medical evidence and other evidence in the record for the reasons 10 explained in this decision. Accordingly, these statements have been 11 found to affect the claimant’s ability to work only to the extent that 12 they can reasonably be accepted as consistent with the objective medical 13 and other evidence.” (AR 26). 14 15 16 The ALJ then addressed Plaintiff’s testimony as follows: 17 18 As for the claimant’s statements about the intensity, 19 persistence, and limiting effects of his or her symptoms, they 20 21 2 The ALJ summarized Plaintiff’s testimony as follows: 22 The claimant testified that she has had two spinal surgeries. She stated that she stopped working because of 23 migraine headaches that caused vomiting and urination. She stated that she cannot work because she cannot focus on 24 anything except for her pain. She stated that she has pain in her shoulders and fibromyalgia. [¶] The claimant stated that 25 she can walk 20 minutes and lift five pounds. She stated that she tried physical therapy and uses a stationary bike for 26 about seven minutes. She stated that she can shop, cook, and do light cleaning. She stated that she can also pump gas. 27 She stated that she needs to take naps during the day for up to two hours and does not sleep well at night. 28 (AR 26). 1 are inconsistent. The undersigned finds that the statements 2 made by the claimant are not fully corroborated by the 3 evidence and gives them weight accordingly. The claimant’s 4 activities of daily living indicate that the claimant is more 5 functional than alleged. The claimant is able to perform some 6 household chores, cook, drive, pump her own gas, watch 7 television, read books, and go shopping [AR 291-301]. The 8 claimant testified that she can walk up to 30 minutes a day 9 and use a stationary bike. In February 2016, the claimant 10 reported being able to walk four blocks and two flights of 11 stairs without symptoms [AR 265]. The claimant also reported 12 that swimming helped with her pain [AR 490]. There is no 13 indication that the claimant performed these tasks with an 14 15 assistive device or while not putting her arms overhead for a 16 stroke. [¶] The medical evidence does not support the 17 claimant’s statements. 18 19 (AR 27). 20 21 After discussing the medical evidence in the record, including the 22 opinions of Plaintiff’s neurosurgeon and of consultative examiners (see 23 AR 27-28), the ALJ stated: “The undersigned acknowledges that each 24 individual has a different threshold with respect to pain symptoms. 25 However, the undersigned must consider the consistency of the claimant’s 26 subjective complaints with the medical evidence, and in this case, the 27 medical evidence does not support a finding that the claimant’s 28 functioning is so limited as to preclude all work.” (AR 28). 1 4. Analysis 2 3 As set forth below, the ALJ failed to provide clear and convincing 4 reasons for discrediting Plaintiff’s testimony about the intensity, 5 persistence and limiting effects of her pain and symptoms.3 6 7 First, the ALJ failed to “specifically identify ‘what testimony is 8 not credible and what evidence undermines [Plaintiff’s] complaints.’” 9 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)(quoting Lester v. 10 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, 80 F.3d at 11 1284 (“The ALJ must state specifically what symptom testimony is not 12 credible and what facts in the record lead to that conclusion”). 13 14 15 Second, the ALJ improperly discounted Plaintiff’s testimony about 16 her symptoms and limitations based on her ability to perform certain 17 daily activities, such as doing some household chores, cooking, driving, 18 pumping gas, watching television, reading books, shopping, walking up to 19 30 minutes, and using a stationary bike. “AlJs must be especially 20 cautious in concluding that daily activities are inconsistent with 21 [subjective symptom testimony], because impairments that would 22 unquestionably preclude work and all the pressures of a workplace 23 24 3 The Court will not consider reasons for discounting Plaintiff’s subjective symptom testimony that were not given by the ALJ 25 in the decision (see Joint Stip. at 13, 15-16, ). See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)(“We are constrained to 26 review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v. Massanari, 249 F.3d 840, 847-48 (9th 27 Cir. 2001)); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons provided by the ALJ in the disability 28 determination and may not affirm the ALJ on a ground upon which he did not rely.”). 1 environment will often be consistent with doing more than merely resting 2 in bed all day.” Garrison, 759 F.3d at 1016. If a claimant’s level of 3 activity is inconsistent with the claimant’s asserted limitations, it 4 has a bearing on credibility. Id. “Though inconsistent daily 5 activities may provide a justification for rejecting symptom testimony, 6 the mere fact that a plaintiff has carried on certain daily activities 7 does not in any way detract from her credibility as to her overall 8 disability.” Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) 9 (citation and alterations omitted); see Orn v. Astrue, 495 F.3d 625, 639 10 (9th Cir. 2007) (“This court has repeatedly asserted that the mere fact 11 that a plaintiff has carried on certain daily activities does not in any 12 way detract from her credibility as to her overall disability.”) 13 (citation and alterations omitted). Indeed, a claimant “does not need 14 15 to be utterly incapacitated in order to be disabled.” Benecke v. 16 Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (citation omitted). 17 Reddick, 157 F3d 715, 722 (9th Cir. 1998) (“Only if the level of 18 activity were inconsistent with the Claimant’s claimed limitations would 19 these activities have any bearing on Claimant’s credibility.”). 20 21 While a plaintiff’s ability to spend a “substantial part” of his or 22 her day engaged in pursuits involving the performance of physical 23 functions that are transferable to a work setting may be sufficient to 24 discredit him or her, here, there is no evidence that Plaintiff was 25 spending a substantial part of her day engaged in these activities or 26 that the physical demands of tasks such as doing some household chores, 27 cooking, driving, pumping gas, watching television, reading books, and 28 shopping were transferable to a work setting. See Ghanim v. Colvin, 763 1 F.3d 1154, 1165 (9th Cir. 2014)(“However, there is no indication here 2 that the limited activities Ghanim engaged in, often with the help of a 3 friend, either comprised a ‘substantial portion’ of Ghanim’s day, or 4 were ‘transferrable’ to a work environment.”). Here, the ALJ did not 5 elicit any testimony at the hearing about the time and effort involved 6 in Plaintiff’s daily activities or make any determination about how 7 Plaintiff’s ability to engage in these activities would enable her to 8 perform certain work functions or were inconsistent with her claimed 9 functional limitations. For example, it is not clear whether the ALJ 10 considered Plaintiff’s statement that washing dishes, showering, 11 cleaning house, and running errands makes her extremely tired and ready 12 for a nap, that it takes her all day to clean the house, which included 13 straightening up, vacuuming, washing dishes, dusting, sweeping and 14 15 mopping, and that she can only do 15 to 20 minutes of housework before 16 she needs a break due to pain, 15 or 20 minutes of gardening before she 17 needs a break due to pain (see AR 161-62: Plaintiff’s Exertion 18 Questionnaire), drive for 15 to 20 minutes and only 10 minutes from her 19 house, and that the heaviest thing she can carry when grocery shopping 20 is a jug of milk (see AR 161: Plaintiff’s Exertion Questionnaire) or 21 Plaintiff’s testimony at the hearing that she has difficulty driving and 22 generally does not drive or pump gas, and tries to cook dinner in the 23 afternoon because she has to take naps (see AR 51-52: Hearing Testimony) 24 in determining the degree to which such daily activities were 25 inconsistent with her testimony regarding her symptoms and limitations. 26 See also Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 27 (9th Cir. 1999)(“If a claimant is able to spend a substantial part of 28 his day engaged in pursuits involving the performance of physical 1 functions that are transferable to a work setting, a specific finding as 2 to this fact may be sufficient to discredit a claimant’s allegations.”). 3 4 The ALJ’s finding that Plaintiff’s ability to walk and climb stairs 5 was inconsistent with her claimed limitations was not a clear and 6 convincing reason to discount her credibility. At the time of her 7 February 2, 2016 preoperative visit, Plaintiff stated she was able to 8 walk four blocks and two flights of stairs without symptoms. (AR 265). 9 However, in the April 3, 2016 Exertion Questionnaire, Plaintiff stated 10 she was not able to walk or climb stairs, and at the November 1, 2017 11 hearing (AR 160-61), Plaintiff stated she could walk only one huge block 12 (which took about 15 to 20 minutes) (AR 42). Plaintiff’s testimony was 13 not inconsistent with her preoperative visit statement, because 14 15 Plaintiff testified her condition worsened after the surgeries (AR 50). 16 17 The ALJ’s finding that Plaintiff’s testimony that she could not put 18 her arms over her head (AR 51) was inconsistent with her statement to 19 a doctor that swimming helped with pain and the lack of any indication 20 in the record that Plaintiff swam strokes without putting her arms over 21 her head, was not a clear and convincing reason for discounting 22 Plaintiff’s credibility. While Plaintiff told a pain management doctor 23 on June 30, 2017 that swimming helped with fibromyalgia, Plaintiff also 24 stated that her “pain is getting worse now.” (AR 490). Moreover, there 25 is no indication in the record about how or for how long Plaintiff swam, 26 and the ALJ at the hearing did not ask Plaintiff about her swimming. 27 Finally, swimming for therapeutic purposes may not have been 28 inconsistent with Plaintiff’s symptoms and limitations. See Vertigan v. 1 Halter, 260 F3d 1044, 1050 (9th Cir. 2001) (“A patient may do these 2 activities [walking in the mall and swimming] despite pain for 3 therapeutic reasons but that does not mean she could concentrate on work 4 despite the pain or could engage in similar activity for a longer period 5 given the pain involved.”); www.mayoclinic.org/diseases- 6 conditions/fibromyalgia/diagnosis-treatment/drc-2035475 (“A physical 7 therapist can teach you exercises that will improve your strength, 8 flexibility and stamina. Water-based exercises might be particularly 9 helpful.”). 10 11 Third, while the ALJ also found there was a lack of objective 12 medical evidence supporting Plaintiff’s testimony concerning her 13 symptoms and limitations, this factor cannot, by itself, support an 14 15 adverse finding about Plaintiff’s testimony. See Trevizo v. Berryhill, 16 871 F.3d 664, 679 (9th Cir. 2017)(once a claimant demonstrates medical 17 evidence of an underlying impairment, “an ALJ ‘may not disregard [a 18 claimant’s testimony] solely because it is not substantiated 19 affirmatively by objective medical evidence.’”; quoting Robbins v. Soc. 20 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)); see also SSR 16-3p, 21 2017 WL 5180304, *7 (“We must consider whether an individual’s 22 statements about the intensity, persistence, and limiting effects of his 23 or her symptoms are consistent with the medical signs and laboratory 24 findings of record. . . . However, we will not disregard an 25 individual’s statements about the intensity, persistence, and limiting 26 effects of symptoms solely because the objective medical evidence does 27 not substantiate the degree of impairment related-symptoms alleged by 28 the individual.”). 1 Because the Court finds that the the ALJ did not discount 2 Plaintiff’s symptom testimony on legally permissible grounds, the Court 3 is unable to defer to the ALJ’s credibility determination. Cf. Flaten 4 v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir. 5 1995)(the court will defer to the ALJ’s credibility determinations when 6 they are appropriately supported in the record by specific findings 7 justifying that decision)(citations omitted). 8 9 B. Remand Is Warranted 10 11 The decision whether to remand for further proceedings or order an 12 immediate award of benefits is within the district court’s discretion. 13 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 14 15 useful purpose would be served by further administrative proceedings, or 16 where the record has been fully developed, it is appropriate to exercise 17 this discretion to direct an immediate award of benefits. Id. at 1179 18 (“[T]he decision of whether to remand for further proceedings turns upon 19 the likely utility of such proceedings.”). However, where, as here, the 20 circumstances of the case suggest that further administrative review 21 could remedy the Commissioner’s errors, remand is appropriate. McLeod 22 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, 211 F.3d 23 at 1179-81. 24 25 Since the ALJ failed to properly assess Plaintiff’s symptom 26 testimony, remand is appropriate. Because outstanding issues must be 27 resolved before a determination of disability can be made, and “when the 28 record as a whole creates serious doubt as to whether the [Plaintiff] 1 is, in fact, disabled within the meaning of the Social Security Act,” 2 further administrative proceedings would serve a useful purpose and 3 remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 4 2014)(citations omitted). 5 6 ORDER 7 8 For the foregoing reasons, the decision of the Commissioner is 9 reversed, and the matter is remanded for further proceedings pursuant to 10 Sentence 4 of 42 U.S.C. § 405(g). 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 15 DATED: January 7, 2020 16 17 /s/ ALKA SAGAR 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28