Penns v. O'Malley

• Court: District Court, D. Nevada
• Decided: May 6, 2025
• Docket: 2:24-cv-01230
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 RANDAL DAVID PENNS, Case No. 2:24-cv-01230-EJY

5 Plaintiff, ORDER 6 v.

7 MARTIN O’MALLEY, Commissioner of Social Security, 8 Defendants. 9 10 Pending before the Court is Plaintiff Randal Penn’s Complaint for Review of Final Decision 11 of the Commissioner of Social Security and his Brief in support thereof. ECF Nos. 6, 10. Also 12 pending is the Commissioner’s Cross-Motion to Affirm. ECF No. 12. The Court has reviewed all 13 briefing related to these Motions and finds as follows. 14 I. Background 15 Plaintiff applied for a period of disability and Social Security Disability Insurance (“SSDI”) 16 benefits on July 2, 2021.1 Administrative Record (“AR”) 303. In his application, Plaintiff alleged 17 he became disabled on May 29, 2021 (AR 304), and his disabilities arose from multiple sclerosis 18 (“MS”), post-traumatic stress disorder (“PTSD”), a traumatic brain injury, migraines, depression, 19 vertigo, and memory loss. AR 356. The state disability agency issued its initial determination on 20 September 30, 2024, finding Plaintiff was not disabled. AR 189-98. This decision was affirmed 21 upon reconsideration. AR 199-208. 22 Plaintiff filed a written request for a hearing before an Administrative Law Judge (“ALJ”) 23 on April 22, 2022. AR 227. At the hearing, which took place on May 11, 2023, Plaintiff argued his 24 MS had worsened since the prior ALJ’s decision as evidenced by increased lesions identified on his 25 brain and the fact that he now required a cane to ambulate. AR 44. Plaintiff testified he could only

26 1 The record shows Plaintiff previously applied for SSDI benefits twice before and received unfavorable decisions by ALJs each time. AR 144, 170. The ALJ in the instant application considered the res judicata effect of the 27 most recent prior decision under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), and found that Plaintiff had rebutted 1 stand for approximately five to ten minutes at a time because his legs would “just give out,” leading 2 to repeated falls. AR 52, 59. The ALJ issued a decision of non-disabled on July 3, 2023. AR 7-26. 3 On March 14, 2024, Plaintiff submitted a request for review by the Appeals Council on September 4 1, 2023. AR 298-302. The Council denied review on May 7, 2024, thus making the ALJ’s decision 5 the final decision of the Commissioner. AR 1-3. Plaintiff thereafter timely initiated the instant 6 action seeking judicial review of the Commissioner’s decision. 7 II. Standard of Review 8 The reviewing court shall affirm the Commissioner’s decision if the decision is based on 9 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 10 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 11 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable 12 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 13 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner’s alleged 14 errors, the Court must weigh “both the evidence that supports and detracts from the 15 [Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 16 “When the evidence before the ALJ is subject to more than one rational interpretation, we 17 must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 18 1035, 1041 (9th Cir. 1995). A reviewing court, however, “cannot affirm the decision of an agency 19 on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. 20 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not 21 reverse an ALJ’s decision on account of an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 22 679 (9th Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful 23 normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 24 396, 409 (2009). 25 To establish whether a claimant is disabled under the Act, there must be substantial evidence 26 that:

27 (a) the claimant suffers from a medically determinable physical or mental 1 (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other 2 substantial gainful employment that exists in the national economy. 3 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant 4 meets both requirements, he or she is disabled.” Id. 5 The ALJ employs a five-step sequential evaluation process to determine whether a claimant 6 is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 7 § 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled’ or 8 ‘not-disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 9 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one 10 through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 11 1098. 12 The five steps include:

13 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act 14 and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step 15 one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).

16 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s 17 impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c). 18 Step 3. Does the impairment “meet or equal” one of a list of specific impairments 19 described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor 20 equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See 20 21 C.F.R. § 404.1520(d).

22 Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance 23 benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the 24 fifth and final step. See 20 C.F.R. § 404.1520(e).

25 Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 26 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy 27 that claimant can do. There are two ways for the Commissioner to meet the burden 1 or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not 2 disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the 3 claimant is “disabled” and therefore entitled to disability benefits. See id. 4 Id. at 1098–99 (internal alterations omitted). 5 III. The ALJ’s Decision 6 At step one, the ALJ stated Plaintiff last met insured status under the Social Security Act on 7 December 31, 2021, establishing the relevant time period as May 29, 2021 through December 31, 8 2021. AR 13. The ALJ determined Plaintiff had not engaged in substantial gainful activity during 9 this period. Id. At step two, the ALJ found Plaintiff suffered from the following severe impairments: 10 MS, headaches, degenerative disc disease of the cervical, thoracic, and lumbar spine, thoracic 11 kyphosis, depression, and PTSD. Id. The ALJ further found Plaintiff’s vestibular dysfunction, 12 degenerative joint disease of the bilateral hips, dental impairment, and vision impairment to be non- 13 severe. Id. At step three, the ALJ found that neither Plaintiff’s physical nor mental impairments 14 met or medically equaled the severity of any “listed” impairment in 20 C.F.R., Part 404, subpart 15 (“subpt.”) P, Appendix (“App.”) 1. AR 14-16. 16 In preparation for step four, the ALJ found Plaintiff had the residual functional capacity 17 (“RFC”) to:

18 [P]erform light work as defined in 20 CFR 404.1567(b) except lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and walking for up to 19 six hours each in an eight-hour workday for total time on his feet to be no more than six hours in an eight-hour workday, frequent bilateral foot and hand controls, 20 occasional overhead reaching bilaterally, frequent reaching in other directions, handling, fingering and feeling bilaterally, occasional climbing ramps and stairs, 21 no climbing ladders, ropes or scaffolds, occasional stooping, kneeling, crouching and crawling, no unprotected heights, no more than occasional exposure to moving 22 mechanical parts and motor vehicle operation, no more than occasional work outdoors, no more than occasional exposure to non-atmospheric extremes of cold 23 and heat, no more than occasional exposure to vibration, can understand, remember and carry out detailed but not complex tasks, frequent contact with supervisors, and 24 occasional contact with coworkers and the public. 25 AR 17. 26 In arriving at this RFC determination, the ALJ considered Plaintiff’s subjective symptom 27 testimony, including Plaintiff’s allegations that his impairments limited his ability to lift, squat, bend, 1 instructions, use hands, and get along with others. AR 18. Though the ALJ found Plaintiff’s 2 medically determinable impairments could reasonably be expected to cause these alleged symptoms, 3 the ALJ noted that the record “more often documents full range of motion, normal motor strength, 4 intact sensation, and vestibular function within normal limits,” as well as generally minimal or 5 normal findings with regard to mental functioning. AR 18-19. In particular, the ALJ determined 6 that Plaintiff’s cane was not medically necessary based on physical therapy records indicating 7 improved gait and balance, as well as reported activities that included light household chores, some 8 shopping, and coaching his son’s football team. AR 19-20. With respect to Plaintiff’s alleged 9 symptoms arising from mental impairments, the ALJ cited to Plaintiff’s ability to drive and manage 10 his finances, as well as his hobbies of writing, and doing podcasts, to support her determination that 11 Plaintiff could perform detailed but not complex work. AR 20-21. 12 At step four, the ALJ determined Plaintiff was unable to perform any of his past relevant 13 work as a screen printer, garbage collection driver, psychiatric aide, sales route driver, dump truck 14 driver, or heavy truck driver. AR 23. 15 At step five, the ALJ concluded that based on Plaintiff’s age, education, work experience, 16 and RFC there were jobs Plaintiff could perform that existed in significant numbers in the national 17 economy. AR 24. In stating this decision, the ALJ noted the Medical-Vocational Guidelines (20 18 C.F.R. Part 404, subpt. P, App. 2 (the “Grid Rules”)) direct a finding of not disabled if Plaintiff is 19 limited to light work. Id. (citing Grid Rule 202.14). However, the ALJ also noted that Plaintiff’s 20 ability in this case was impeded by additional limitations and, therefore, the ALJ relied on the 21 testimony of a VE to determine whether, with these limitations added, a sufficient number of jobs 22 Plaintiff could perform still existed in the national economy. Id. Based on the VE’s testimony, the 23 ALJ found Plaintiff retained the RFC to perform work as a merchandise marker, routing clerk, 24 electrical accessories I assembler, and mail clerk. AR 24-25. 25 Although this determination was based on a standing or walking limitation of no more than 26 six hours in a workday, the ALJ stated that based on the VE’s testimony her ultimate determination 27 would not differ if Plaintiff was instead limited to standing or walking no more than four hours in a 1 System (“POMS”), which directs a finding of not disabled in situations in which a claimant falls 2 between two Grid Rules and the ALJ determines their exertional capacity is only “slightly reduced” 3 from the higher Grid Rule. POMS DI 25025.015. 4 Under this direction, the ALJ concluded that “through the date last insured, considering 5 [Plaintiff]’s age, education, work experience, and residual functional capacity, [Plaintiff] was 6 capable of making a successful adjustment to other work that existed in significant numbers in the 7 national economy.” AR 26. On this basis, the ALJ denied Plaintiff’s applications for disability 8 insurance benefits under sections 216(i) and 223(d) of the Social Security Act prior to December 31, 9 2021, the date last insured. Id. 10 IV. The Parties’ Arguments 11 Plaintiff raises two challenges to the ALJ’s decision. First, Plaintiff contends the ALJ’s RFC 12 determination regarding Plaintiff’s mental limitations is not supported by substantial evidence 13 because it does not include a moderate limitation in concentration, persistence, and pace. ECF No. 14 10 at 5. Plaintiff argues the ALJ identified a moderate limitation in step three of the analysis, but 15 failed to include this in the RFC determination. Id. (citing Saucedo v. Colvin, Case No. 6:12-cv- 16 02289-AC, 2014 WL 4631225 (D. Or. Sept. 15, 2014), and Lubin v. Comm’r Soc. Sec. Admin., 507 17 Fed.Appx. 709 (9th Cir. 2013)). Plaintiff further contends the ALJ erred by rejecting the mental 18 limitations noted in the prior agency medical findings (“PAMFs”) without providing sufficient 19 reasons. Plaintiff says the ALJ’s reasoning—that these limitations used “vague and undefined terms 20 and are only somewhat consistent with the evidence of adequate mental functioning”—does not 21 provide “an accurate and logical bridge from the evidence to her evaluation of the state agency 22 opinions.” ECF No. 10 at 6-7 (citing AR 22). 23 Second, Plaintiff asserts the ALJ failed to provide clear and convincing reasons for 24 discounting Plaintiff’s testimony in which Plaintiff explained his MS symptoms prevent him from 25 standing and walking for six hours in a workday. Id. at 8. Here, Plaintiff focuses on the ALJ’s 26 conclusion that his use of a cane was not medically necessary. Citing Estes v. R.R. Ret. Bd., 776 27 F.2d 1436 (9th Cir. 1985) and Wilcox v. Sullivan, 917 F.2d 272 (6th Cir. 1990), Plaintiff says MS is 1 evidence of reduced symptoms may indicate a period of remission rather than lack of significant 2 limitations. ECF No. 10 at 8-10. Plaintiff also cites to several portions of the record conflicting with 3 the ALJ’s conclusion that a cane was not medically necessary while arguing the ALJ failed to 4 adequately explain how Plaintiff’s daily reported activities conflict with Plaintiff’s subjective 5 testimony regarding his difficulty standing and walking. Id. at 10-14. 6 The Commissioner responds to Plaintiff’s first challenge by arguing that Plaintiff confuses 7 the evaluation of functional limitations in step three of the sequential evaluation with the more 8 detailed assessment performed when reaching an RFC. ECF No. 12 at 6-7. The Commissioner says 9 the ALJ provided ample citation to the record to support her RFC determination with regard to 10 Plaintiff’s mental limitations, including to the state agency examinations and Plaintiff’s daily 11 activities. The Commissioner further cites to Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 12 2008), to support the ALJ’s conclusion that an RFC limiting Plaintiff to simple tasks adequately 13 reflected a moderate limitation in concentration and consistency. ECF No. 12 at 7. 14 Responding to Plaintiff’s second challenge, the Commissioner contends that while portions 15 of the record may indicate some evidence of falling, and issues with balance and gait, the record 16 more often indicated full range of motion, normal gait, and normal motor strength. Id. at 12. The 17 Commissioner says an RFC determination is meant to represent the most a claimant can do not the 18 least, and evidence that Plaintiff requires a cane sometimes does not represent the most he can do 19 despite his limitations. Id. at 13 (citing 20 CFR 404.1545(a)(1). The Commissioner also argues 20 Plaintiff’s positive reaction to conservative treatment and reported daily activities of performing 21 light household chores and coaching his son’s football team part of the year conflicted with his 22 subjective testimony regarding the need for a cane. Id. at 14-17. 23 V. Discussion 24 A. Mental Residual Functional Capacity. 25 Plaintiff’s first argument regarding the ALJ’s mental RFC assessment is without merit. 26 Plaintiff asserts that because the ALJ found Plaintiff suffered from moderate difficulty in 27 concentration, persistence, and pace during step three of the sequential analysis, it was error for the 1 explained in the ALJ’s decision, “[t]he limitations identified in the ‘paragraph B’ criteria are not a 2 residual functional capacity assessment[;]” rather, “[t]he mental residual functional capacity 3 assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed 4 assessment of the areas of mental functioning.” AR 16-17. Even if this were not the case, the ALJ 5 noted within her discussion during step three that although Plaintiff had “reported his ability to 6 concentrate is impaired and he can pay attention for a few seconds to a few minutes … the evidence 7 noted logical and lineal thought processes with … intact attention, and intact concentration.” AR 8 15-16. This is the same conclusion the ALJ came to during step four where she noted the objective 9 evidence indicated Plaintiff retained “intact short- and long-term memory, intact attention, [and] 10 intact concentration.” AR 19. In other words, the ALJ’s discussion in performing the RFC 11 assessment was consistent with that during step three. 12 Plaintiff cites to Lubin, an unpublished Ninth Circuit decision, to support his argument. ECF 13 No. 10 at 5. However, while Lubin held it was error for an ALJ not to include moderate difficulties 14 in concentration within the claimant’s RFC when such a limitation was noted earlier by the ALJ, 15 Lubin, 507 Fed.Appx. at 712, a separate, published line of cases holds that “an ALJ’s assessment of 16 a claimant adequately captures restrictions related to concentration, persistence, or pace where the 17 assessment is consistent with restrictions identified in the medical testimony.” Stubbs-Danielson, 18 539 F.3d at 1174. As the ALJ sufficiently explained in her step three analysis and RFC assessment, 19 the medical record of evidence indicated intact attention and concentration. The Court therefore 20 finds no error with the ALJ’s mental RFC determination. 21 B. Plaintiff’s Testimony Regarding Ability to Stand/Walk. 22 The Court next considers Plaintiff’s argument that the ALJ failed to provide clear and 23 convincing reasons for rejecting Plaintiff’s testimony that he cannot stand and walk for six hours per 24 day. Plaintiff asserts that it was error for the ALJ to disregard portions of the record indicating 25 Plaintiff required a cane and instead citing to records indicating improved gait and balance. ECF 26 No. 10 at 8-13. Plaintiff cites to Estes for the proposition that the nature of MS as a progressive 27 disease with periods of remission and exacerbation is such that ALJs must consider whether evidence 1 disabled. Id. at 8-9. Estes, however, was a case about Railroad Retirement Board benefits, not 2 Social Security. 776 F.2d at 1436. While the court in Estes did cite to a Social Security decision by 3 the Sixth Circuit, Parish v. Califano, 642 F.2d 188 (6th Cir. 1981), Estes does not appear to ever 4 have been cited by the Ninth Circuit in the context of a claim for Social Security benefits.2 It may 5 be “a well-accepted practice to use case law construing disability under the Social Security Act as 6 precedent for cases coming under the Railroad Retirement Act,” Poole v. Railroad Retirement Bd., 7 905 F.2d 654 (2d Cir. 1990), Plaintiff cites no authority suggesting the opposite is true. 8 Notwithstanding Plaintiff’s discussion of Estes, the Court questions whether the ALJ fully 9 considered the record before her. For example, the ALJ cited to several portions of the record to 10 support her observation that “physical therapy records document a significant improvement in gait 11 mechanics without use of a cane,” AR 19, but this characterization accurately represents only one of 12 the reports cited. That report, consisting of physical therapy progress notes from August 30, 2021, 13 states Plaintiff self-reported his condition had improved since beginning physical therapy. AR 476. 14 Even with this consistency, however, the objective assessment section of the report states that 15 although Plaintiff “demonstrate[d] mild improvements in overall function,” he continued to 16 demonstrate “sig[nificant] nausea” when turning his head while walking as well as “sig[nificant] 17 imbalance when stepping over objects.” AR 477. The report goes on to identify Plaintiff as a 18 significant fall risk. AR 478. The remaining reports cited by the ALJ on this point cut against, rather 19 than support, her finding of significant improvement. For example, the ALJ cites to a report from 20 March 30, 2022 (after the relevant time period) as evidence that Plaintiff’s balance had improved. 21 AR 19 (citing AR 990). Indeed, the March 30, 2022 report states Plaintiff had “no improvements in 22 strength or gait,” and continues to have “dec[reasing] balance and vertigo.” AR 990. 23 Although the ALJ cited to physical therapy records stating Plaintiff was able to ambulate 24 without a cane with normal gait speed while avoiding obstacles (AR 998), the same records states

25 2 Even if the Court applied Sixth Circuit case law, Plaintiff’s argument would not prevail because the issue considered in Parish was when a claimant who was undisputedly disabled first became disabled. 642 F.2d at 189. As 26 other courts within the Sixth Circuit have acknowledged, the reasoning used to resolve this question cannot be directly applied when determining whether a claimant is indeed disabled at all under the Social Security Act. See, e.g., Wood v. 27 Astrue, Case No. 2:10-CV-132, 2011 U.S. Dist. LEXIS 89363, at *10 (E.D. Tenn. July 26, 2011) (“Being undisputedly 1 Plaintiff can walk for ten minutes without significant pain only while using a cane. AR 999. Every 2 other physical therapy report in the record indicated the same, save for those indicating that this goal 3 was not met at all. See generally, AR 815-1018. 4 This last point is key. The determinative issue is whether Plaintiff was limited to sedentary 5 work, and thus whether a finding of disabled would be directed by the Grid Rules, is how long 6 Plaintiff was able to stand or walk per day during the relevant time period. Even accepting as true 7 the ALJ’s statement that the record indicated significant improvement in gait mechanics, evidence 8 of normal gait would not provide clear and convincing reasons for discounting Plaintiff’s testimony 9 that he cannot stand for more than ten minutes because, as well-established—”[g]ait—how a person 10 walks or moves—does not relate to how long a person can walk, stand, or sit.” Blondell J. v. 11 Comm’r, SSA, Case No. 3:22-cv-1612-JR, 2024 WL 3964754, at *6 (D. Or. Aug. 26, 2024); see also 12 Rosemary M.H. v. Comm’r of Soc. Sec., Case No. C22-5993-BAT, 2023 WL 6307249, at *2 (W.D. 13 Wash. Sep. 28, 2023) (“[O]bservations of normal gait over a few minutes are not determinative of 14 how long a person can stand or walk.”); Terry M. v. Comm’r of Soc. Sec., Case No. 23-5556 SKV, 15 2024 WL 578099, at *5 (W.D. Wash. Feb. 13, 2024) (ALJ committed reversable error by relying on 16 evidence that a claimant “was able to ride a motorcycle” to discount testimony that she could only 17 sit for fifteen minutes, when said evidence “d[id] not shed light on how long Plaintiff would ride”). 18 Simply said, the ALJ committed harmful error when she equated gait to the length of time Plaintiff 19 can walk and stand. 20 While the Court agrees that record medical evidence for the relevant time period relating to 21 Plaintiff’s use of a cane is not a model of clarity, the ALJ has an obligation to develop the record 22 and explain why the pieces of evidence indicating use of a cane is not medically necessary are more 23 persuasive than those indicating the opposite. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 24 The determinative issue in deciding whether Plaintiff is disabled is how long Plaintiff can stand and 25 walk without a cane; it is not merely whether he can ever do so. Thus, portions of the record 26 demonstrating Plaintiff’s ability to ambulate without a cane for less than ten minutes do not qualify 27 as substantial evidence for discounting Plaintiff’s testimony that he requires a cane. The ALJ failed 1 Plaintiff could not walk for ten minutes without significant pain unless he was using a cane and/or 2 that he remained a significant fall risk. 3 Regarding Plaintiff’s daily reported activities, the Court notes that most of the activities cited 4 by the ALJ only indicate standing or walking for a few minutes at a time. See, e.g., AR 374 (stating 5 that Plaintiff takes five minutes to iron clothes, seven minutes to water lawn, and five minutes to 6 vacuum). The ALJ also repeatedly cited to Plaintiff’s testimony that he coached his son’s football 7 team. AR 19-20. The ALJ cited and sought no evidence demonstrating this activity required 8 Plaintiff to stand and move for extended periods of time. See generally, AR 7-76. Because the ALJ 9 failed to develop the record as it relates to Plaintiff coaching his son’s football team, reference to 10 this activity does not qualify as substantial evidence. See Hummel v. Kijakazi, Case No. 22-36016, 11 2023 WL 7318492, at *2 (9th Cir. Nov. 7, 2023) (Because “[t]he ALJ did not develop the record 12 about coaching at the April 2021 hearing beyond asking a single question … we cannot say that the 13 limited information about coaching can by itself constitute substantial evidence supporting a finding 14 that [Plaintiff]’s symptoms were not as severe as he testified.”) (cleaned up) (citing Trevizo v. 15 Berryhill, 871 F.3d 664, 682 (9th Cir. 2017)). 16 The Court is also not persuaded by the Commissioner’s argument that because an RFC 17 determination is meant to represent the most a claimant can do, records indicating Plaintiff could 18 walk without a cane at least some of the time were sufficient to meet the substantial evidence 19 necessary to confirm the ALJ’s RFC determination. ECF No. 12 at 13. Again, the key determination 20 in this case is how long Plaintiff can stand or walk without use of a cane. While SSR 96-8p states 21 an RFC represents “the most” a claimant can do despite their limitations, evidence that Plaintiff can 22 sometimes walk without a cane but for less than ten minutes does not support a determination that 23 the most Plaintiff can walk is six, or even four, hours per day. 24 Finally, the ALJ misstated the record by asserting that Plaintiff denied falls during the 25 relevant time period. AR 19. The two records cited by the ALJ state that Plaintiff reported no falls 26 since his previous visit, but one of these reports is from three months after the relevant time period 27 (AR 988), and the other was made only one week after Plaintiff’s previous visit (AR 615-17). It 1 reported no falls as indicating he had not fallen at all during a much longer relevant time period. In 2 fact, contrary to the ALJ’s representation, a physical therapy record from August 20, 2021, states 3 that “[Plaintiff] report[ed] he had fallen twice [that] morning.” AR 479. Plaintiff fell the first time 4 “when he got up to walk out of his room.” Id. Plaintiff fell a second time “when he started to walk 5 agin [sic] after getting up ….” Id. 6 Based on the foregoing, the Court finds the ALJ erred by discounting Plaintiff’s testimony 7 that he could only stand for five to ten minutes at a time. The ALJ’s RFC determination that Plaintiff 8 was able to stand and walk for six hours per workday is not supported by substantial evidence in the 9 record. Considering the centrality of Plaintiff’s ability to walk without a cane to the ALJ’s ultimate 10 determination of disability, this error was not harmless. 11 VI. Remedy 12 The only remaining question is that of remedy. Though remanding for further consideration 13 is more typical, the Court concludes that directing an award of benefits is appropriate here. Under 14 both the regulations and the testimony of the vocational expert, Plaintiff would be limited to 15 sedentary work if he can stand or walk in four hours or less. C.F.R. § 404.1567; AR 73. Under the 16 Grid Rules, this would direct a finding of disabled for a claimant of Plaintiff’s age and background. 17 Grid Rule 201.12. The ALJ addressed this by explaining she found that a limitation to standing for 18 four hours or less would be only slightly reduced from a capacity for light work, which would direct 19 a finding of not disabled under POMS DI 25025.015. AR 25 n.3. However, the Court finds the 20 medical evidence of record, when taken as a whole, indicates Plaintiff would struggle to stand for 21 more than ten minutes without a cane. The record further indicates that this limitation was not 22 expected to significantly improve with treatment. AR 990 (noting that Plaintiff “demonstrate[d] 23 plateau in function” and that he had “reached max benefit” of physical therapy). Put simply, a 24 capacity to stand and walk that is measured in minutes rather than hours cannot reasonably be 25 construed as “slightly” reduced from a capacity to do so for six hours. Further, given the narrowness 26 of the relevant time period at only seven months, it is doubtful any additional relevant medical 27 evidence could be produced beyond what is already included in the record. Because the Court finds 1 guidelines direct a finding of disabled for a claimant of Plaintiff’s background who is limited to 2 sedentary work, the Court remands this case with instructions to award benefits. 3 VII. Order 4 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Complaint seeking reversal of the 5 ALJ’s decision (ECF No. 6) is GRANTED. The case is REMANDED to the agency with directions 6 to immediately award benefits. 7 IT IS FURTHER ORDERED that the Clerk of Court must close this case and enter judgment 8 accordingly. 9 Dated this 6th day of May, 2025. 10

11 ELAYNA J. YOUCHAH 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27