1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 SARAH ANNE P., Case No.: 20cv1029-MMA-MDD
11 Plaintiff, REPORT AND 12 v. RECOMMENDATION GRANTING PLAINTIFF'S MERITS BRIEF 13 ANDREW SAUL, Commissioner of
Social Security 14 [ECF No. 13] Defendant. 15
16 17 This Report and Recommendation is submitted to United States 18 District Judge Michael M. Anello pursuant to 28 U.S.C. § 636(b)(1) and Local 19 Civil Rule 72.1(c) of the United States District Court for the Southern 20 District of California. 21 Sarah Anne P. (“Plaintiff”) filed this action pursuant to 42 U.S.C. 22 § 405(g) for judicial review of the final administrative decision of the 23 Commissioner of the Social Security Administration (“Commissioner”) 24 denying Plaintiff’s application for a period of disability and disability 25 insurance benefits under Title II of the Social Security Act (“Act”). (AR at 20- 26 1 34, 305-06).1 For the reasons expressed herein, the Court RECOMMENDS 2 Plaintiff’s Merits Brief be GRANTED and the case be REMANDED for 3 further proceedings. 4 I. BACKGROUND 5 Plaintiff was born January 14, 1969. (AR at 305). At the time of 6 Plaintiff’s alleged disability onset date of September 13, 2014, Plaintiff was 7 45 years old which categorized her as a younger person. 20 C.F.R. § 8 404.1563. (AR at 33). Plaintiff was 50 years old, categorizing her as a person 9 closely approaching advanced age, at the time of the ALJ’s decision on May 10 10, 2019. (Id.). 11 A. Procedural History 12 On August 12, 2015, Plaintiff protectively filed an application for a 13 period of disability and disability insurance benefits under Title II of the Act, 14 alleging a disability beginning on September 13, 2014. (AR at 305-06). After 15 her application was denied initially and upon reconsideration, Plaintiff 16 requested an administrative hearing before an administrative law judge 17 (“ALJ”). (AR at 20). Administrative hearings were held on August 8, 2018 18 and March 7, 2019. (AR at 41-137). Plaintiff appeared and was represented 19 by an attorney. (Id.). Testimony was taken from Plaintiff and Connie 20 Guillory, an impartial vocational expert (“VE”). (Id.). On May 10, 2019, the 21 ALJ issued a decision denying Plaintiff’s claim for a period of disability and 22 disability insurance benefits. (AR at 20-34). 23 On June 17, 2019, Plaintiff sought review with the Appeals Council. 24 (See AR at 15). On April 6, 2020, the Appeals Council denied Plaintiff’s 25
26 1 “AR” refers to the Certified Administrative Record filed on November 10, 2020. (ECF No. 1 request for review and declared the ALJ’s decision to be the final decision of 2 the Commissioner in Plaintiff’s case. (AR at 1). This timely civil action 3 followed. 4 II. DISCUSSION 5 A. Legal Standard 6 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 7 unsuccessful applicants to seek judicial review of a final agency decision of 8 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 9 review is limited in that a denial of benefits will not be disturbed if it is 10 supported by substantial evidence and contains no legal error. Id.; see also 11 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1993 (9th Cir. 2004). 12 Substantial evidence “is a ‘term of art’ used throughout administrative 13 law to describe how courts are to review agency factfinding.” Biestek v. 14 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 15 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 16 support the agency’s factual determinations.” Id. “[T]he threshold for such 17 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 18 Court] has said, is ‘more than a mere scintilla.’ It means—and only means— 19 ‘such relevant evidence as a reasonable mind might accept as adequate to 20 support a conclusion.” Id. The Ninth Circuit explains that substantial 21 evidence is “more than a mere scintilla but may be less than a 22 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) 23 (quotation marks and citations omitted), superseded by regulation on other 24 grounds. 25 An ALJ’s decision is reversed only if it “was not supported by 26 substantial evidence in the record as a whole or if the ALJ applied the wrong 1 the ALJ’s determination, [the Court] must assess the entire record, weighing 2 the evidence both supporting and detracting from the agency’s conclusion.” 3 Ahearn v. Saul, No. 3:18-cv-05699-MLP, 2021 U.S. App. LEXIS 4472, at *5 4 (9th Cir. Feb. 17, 2021) (citing Mayes v. Massanari, 276 F.3d 453, 459 (9th 5 Cir. 2001)). The Court “may not reweigh the evidence or substitute [it’s] 6 judgment for that of the ALJ.” Id. “The ALJ is responsible for determining 7 credibility, resolving conflicts in medical testimony, and for resolving 8 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When 9 the evidence can rationally be interpreted in more than one way, the court 10 must uphold the [ALJ’s] decision.” Mayes, 276 F.3d at 459. 11 Section 405(g) permits a court to enter a judgment affirming, modifying 12 or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing 13 court may also remand the matter to the Social Security Administration for 14 further proceedings. Id. 15 B. Summary of the ALJ’s Findings 16 In rendering his decision, the ALJ followed the Commissioner’s five-step 17 sequential evaluation process. See C.F.R. § 404.1520. At step one, the ALJ 18 found that Plaintiff had not engaged in substantial gainful activity since 19 September 13, 2014. (AR at 23). 20 At step two, the ALJ found that Plaintiff had the following severe 21 impairments: fibromyalgia, asthma, major depressive disorder, anxiety 22 disorder, dissociative disorder, and post-traumatic stress disorder (“PTSD”). 23 (Id.). 24 At step three, the ALJ found that Plaintiff did not have an impairment 25 or combination of impairments that met or medically equaled one of the 26 impairments listed in the Commissioner’s Listing of Impairments. (AR at 24) 1 404.1525 and 404.1526)). 2 Next, after considering the entire record, the ALJ determined that 3 Plaintiff had the residual functional capacity (“RFC”) to perform light work 4 with the following limitations: 5 The claimant can occasionally climb ramps or stairs and never climb ladders, ropes, or scaffolds. The claimant can occasionally 6 balance, stoop, kneel, crouch, or crawl. The claimant must avoid all 7 exposure to dust, odors, fumes or other pulmonary irritants, and should not work at unprotected heights or around dangerous 8 machinery. The claimant must be afforded leeway to shift position 9 between standing and sitting (to alleviate discomfort), once or twice each morning and afternoon, while remaining on task. The 10 claimant is limited to work involving simple and detailed, but not 11 complex, tasks or decisions. 12 (AR at 25-26). 13 The ALJ said that his RFC assessment was based on all the evidence 14 and the extent to which Plaintiff’s symptoms can reasonably be accepted as 15 consistent with the objective medical evidence and other evidence. (AR at 16 26). The ALJ also stated that he considered the opinion evidence in 17 accordance with the requirements of 20 C.F.R. 404.1527. (Id.). 18 The ALJ then proceeded to step four of the sequential evaluation 19 process. He found Plaintiff was unable to perform her past relevant work. 20 (AR at 32). For the purposes of his step five determination, the ALJ accepted 21 the testimony of VE Connie Guillory. The ALJ determined that Plaintiff 22 could perform jobs identified by the VE which exist in significant numbers in 23 the national economy. For example, information clerk (DOT 237.367-022); 24 referral/information aide (DOT 237.637-042); and teacher assistant (DOT 25 249.367-074). (AR at 34). 26 C. Issues in Dispute 1 rejected Dr. Middleton’s opinion regarding physical functioning; and (2) 2 whether the ALJ properly rejected Plaintiff’s statements concerning pain, 3 symptoms, and level of limitation. (ECF No. 13). 4 1. Dr. Middleton 5 Plaintiff argues the ALJ erred in according treating physician, Gregory 6 David Middleton, M.D., “some weight.” (ECF No. 13 at 5-10). Dr. Middleton 7 opined that Plaintiff was disabled and could not work. (AR at 1235, 1252). 8 Conversely, the ALJ gave significant weight to consultative examiner, Amy 9 Kanner, M.D.’s opinion that Plaintiff “could perform light work with 10 standing/walking for six hours and sitting for six hours in an eight-hour 11 workday,” “could occasionally bend, stoop, or crouch and never crawl or climb 12 ropes, ladders or scaffolds,” and “should avoid exposure to potentially 13 irritating fumes.” (AR at 30-31). 14 Dr. Middleton provided two letters in support of his opinion. On August 15 13, 2018, Dr. Middleton stated that Plaintiff has a “very severe case of 16 fibromyalgia” and that her “severe pain has limited her ability to function 17 and exercise.” (AR at 1235). He opined that “her symptoms are certainly 18 enough to qualify for disability.” (Id.). Dr. Middleton declined to fill out an 19 RFC form because he did “not have any objective medical testing or 20 information to be able to decide how much weight a person can lift, or how 21 long they can sit and stand.” (Id.). He explained that if he did fill out such a 22 form, he would merely be reiterating what Plaintiff told him. (Id.). 23 Nonetheless, he concluded that Plaintiff would [not] be able to function at a 24 normal job whether it be sitting or standing for an 8 hour workday.” (Id.). 25 On February 6, 2019, Dr. Middleton wrote a letter to address Dr. 26 Kanner’s functional assessment of Plaintiff. (AR at 1252). He explained that 1 treatment records. (Id.). Dr. Middleton also took issue with Dr. Kanner’s use 2 of tender points to diagnose fibromyalgia and lack of documentation beyond 3 the physical examination of Plaintiff to support her functional assessment. 4 (Id.). Dr. Middleton then explained that his opinion that Plaintiff is 5 disabled “is based on years of experience treating fibromyalgia patients, as 6 well as years of seeing [Plaintiff] . . . and really fully understanding the 7 difficulties that she has faced, and the lack of response to multiple attempts 8 at treatment.” (Id.). 9 In social security cases, more weight should be given to the opinion of a 10 treating source than to the opinion of doctors who do not treat the plaintiff. 11 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where the treating doctor’s 12 opinion is contradicted by another doctor, as is the case here, it may be 13 rejected for specific and legitimate reasons supported by substantial evidence 14 in the record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 15 The ALJ rejected Dr. Middleton’s opinion because: (1) his opinion 16 overstates Plaintiff’s physical limitations and gives uncritical deference to 17 Plaintiff’s complaints; and (2) Dr. Middleton could not opine to specific 18 functional limitations due to a lack of objective medical testing. (AR at 31- 19 32). The Ninth Circuit recognizes that fibromyalgia’s “symptoms are 20 entirely subjective. There are no laboratory tests for the presence or severity 21 of fibromyalgia.” Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001); see 22 also Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Belanger v. 23 Berryhill, 685 F. App’x 596, 598 (2017). “In the context of a disease that is 24 diagnosed primarily through subjective self-reports, the fact that a treating 25 physician relied on subjective complaints is not itself a valid basis to reject 26 the physician’s opinion.” Belanger, 685 F. App’x at 598-99. However, 1 reason when the opinion is premised on a plaintiff’s own subjective 2 complaints that the ALJ properly discredited. Fair v. Bowen, 885 F.2d 597, 3 605 (9th Cir. 1989). 4 As discussed in detail below, the ALJ did not properly discredit 5 Plaintiff’s subjective complaints regarding fibromyalgia. Further, it was 6 error to require objective medical testing because fibromyalgia is a disabling 7 impairment that lacks objective tests to conclusively confirm the disease. See 8 e.g., Benecke, 379 F.3d at 594 (holding that the ALJ erred by requiring 9 objective evidence for a disease that eludes such measurement). As such, the 10 ALJ did not provide specific and legitimate reasons for according less weight 11 to Dr. Middleton’s opinion than to Dr. Kanner’s opinion. 12 2. The Intensity, Persistence, and Limiting Effects of 13 Plaintiff’s Symptoms and Level of Limitation Finding 14 The ALJ found that Plaintiff’s “statements concerning the intensity, 15 persistence and limiting effects of [her] symptoms are not entirely consistent 16 with the medical evidence and other evidence in the record” and do not 17 support a more restrictive RFC. (AR at 26-27). The ALJ did not find that 18 Plaintiff was malingering. (See id.). Where the ALJ does not find that the 19 plaintiff was malingering, the ALJ must provide “specific, clear, and 20 convincing reasons” for rejecting the plaintiff’s testimony, while identifying 21 the specific testimony the ALJ found “not to be credible” and explaining 22 “what evidence undermine[d]” the testimony. Treichler v. Comm’r of SSA, 23 775 F.3d 1090, 1102 (9th Cir. 2014) (internal quotation marks and citations 24 omitted). 25 a. Statements Inconsistent with Medical Records 26 In finding that Plaintiff’s statements about the intensity, persistence, 1 ALJ specifically identified testimony regarding the severity of her symptoms 2 and identified portions of the medical record that undermined her testimony. 3 (See AR at 27-29). For the reasons discussed below, the Court concludes that 4 the ALJ’s decision to discredit Plaintiff’s symptom testimony as inconsistent 5 with the objective medical records is not supported by substantial evidence. 6 1. Physical Impairments 7 With respect to Plaintiff’s fibromyalgia, the ALJ found inconsistencies 8 between the record and Plaintiff’s symptoms. For example, while Plaintiff 9 reported extreme pain due to fibromyalgia, examinations revealed normal 10 gait, normal extremity range of motion, and good range of motion of her 11 spine, hips, knees, and shoulders. (AR at 28). Moreover, the consultative 12 examiner noted that Plaintiff did not use an assistive device, had normal 13 motor strength and intact sensation in the upper and lower extremities. 14 (Id.). 15 Generally, inconsistency or contradiction with the medical record is 16 adequate to reject a plaintiff’s subjective testimony. See Carmickle v. Comm’r 17 SSA, 533 F.3d 1155, 1161 (9th Cir. 2008). However, the Ninth Circuit has 18 recognized that “‘there are no laboratory tests to confirm the diagnosis [of 19 fibromyalgia],’” and fibromyalgia “is diagnosed ‘entirely on the basis of the 20 patients’ reports of pain and other symptoms.’” Revels v. Berryhill, 874 F.3d 21 648, 656, 666 (9th Cir. 2017) (citations omitted). As such, “[i]n evaluating 22 whether a [plaintiff’s RFC] renders them disabled because of fibromyalgia, 23 the medical evidence must be construed in light of fibromyalgia’s unique 24 symptoms and diagnostic methods . . . . The failure to do so is error.” Id. at 25 662. The absence of objective clinical findings is not evidence of an 26 inconsistency with Plaintiff’s subjective complaints regarding fibromyalgia. 1 require[ing] “objective” evidence for a disease that eludes such 2 measurement.’”). As such, the cited medical records—which lack affirmative 3 evidence of fibromyalgia—do not evince inconsistencies and do not provide a 4 clear and convincing reason for discounting Plaintiff’s testimony. 5 The ALJ also found that treatment for Plaintiff’s fibromyalgia is routine 6 and conservative. (AR at 28). He noted that Plaintiff found some relief for 7 fibromyalgia pain and fatigue throughout her treatment with the use of 8 Lyrica, ibuprofen, Marijuana, Tramadol, and vitamins. (Id.). “Any evaluation 9 of the aggressiveness of a treatment regime must take into account the 10 condition being treated.” Revels, 874 F.3d at 667. “Fibromyalgia’s cause is 11 unknown, there is no cure, and it is poorly-understood within much of the 12 medical community.” Benecke, 379 F.3d at 590. Fibromyalgia does not lend 13 itself to aggressive treatment and faulting a plaintiff for not obtaining 14 aggressive treatment is illogical. See Revels, 874 F.3d at 667; Benecke, 379 15 F.3d at 590. Further, the medical record illustrates that medication did not 16 consistently treat Plaintiff’s pain effectively. For example, Plaintiff 17 frequently adjusted her dosage of Lyrica and sometimes discontinued Lyrica 18 altogether based on it’s efficacy. (See AR at 850, 897, 941, 965-67, 1018-20, 19 1088-92, 1115, 1196). 20 2. Mental Impairments 21 Regarding Plaintiff’s mental impairments, the ALJ found “the 22 longitudinal treatment records” are inconsistent with her allegations because 23 her symptoms were “responsive to treatment.” (AR at 28-29). Plaintiff 24 reported feeling depressed due to her fibromyalgia and that she was 25 diagnosed with PTSD due to a history of rape with intrusive memories of the 26 incidents. (AR at 28). Plaintiff “endorsed insomnia, increased appetite, 1 activities.” (AR at 28-29). Plaintiff also reported “feeling suicidal in the 2 past.” (AR at 29). 3 The ALJ noted that Plaintiff reported feeling better, and increased 4 energy, motivation, and activity with treatment. (AR at 29). Specifically, she 5 reported improved concentration, decreased anxiety symptoms, sleeping 6 better with medication, and improved mood with therapy. (Id.). Although 7 Plaintiff is diagnosed with dissociative disorder with symptoms of multiple 8 voices in her head, Plaintiff reported less interaction with those personalities 9 with treatment and remains able to focus. (Id.). The ALJ noted that 10 Plaintiff’s “functional status remains intact, with appropriate affect, oriented 11 and alert cognitive functioning, and interactive interpersonal skills.” (Id.). 12 The ALJ also noted that Plaintiff’s other examining and treating providers 13 indicated that Plaintiff was able to function within normal limits. (Id.). 14 When an ALJ considers a claimant’s mental health issues, “it is error to 15 reject a claimant’s testimony merely because symptoms wax and wane in the 16 course of treatment.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). 17 Although “[c]ycles of improvement and debilitating symptoms are a common 18 occurrence . . . it is error for an ALJ to pick out a few isolated instances of 19 improvement over a period of months or years and to treat them as a basis 20 for concluding a claimant is capable of working.” Id. 21 After careful consideration of the objective medical records regarding 22 Plaintiff’s mental impairments, the Court finds that the ALJ’s decision to 23 discredit Plaintiff’s symptom testimony because she is responsive to 24 treatment is not supported by substantial evidence. Plaintiff’s symptoms 25 fluctuate between euthymic and depressed moods, which affected her sleep, 26 concentration, and other symptoms. Further, while there were a few therapy 1 were present and interactive in majority of her therapy sessions with Vicki 2 Grove, LMFT. 3 Plaintiff saw Michele Manker, LCSW from December 1, 2015 to 4 January 20, 2017. (AR at 1255-1287). She noted that Plaintiff’s impairments 5 were moderate to severe and that her anxiety and depression were high, but 6 her notes otherwise lack specificity and detail. (See AR at 1260-127). 7 Plaintiff was then treated by Feeby Wooden, PhD, from January 26, 2015 to 8 June 30, 2015. (AR at 463-518). 9 On January 26, 2015, Feeby Wooden, PhD, conducted a psychological 10 assessment on Plaintiff. (AR at 463-64). Plaintiff reported depression, 11 anxiety, low energy, decreased motivation, withdrawal, change in sleeping 12 patterns, poor concentration, and low self-esteem. (AR at 463). Dr. Wooden 13 found Plaintiff to be alert with good hygiene and appropriate body 14 movements, but also that she had “slumped posture, sad facial expression,” 15 was “submissive, teary, sad, [and] anxious.” (Id.). 16 In early February of 2015, Plaintiff reported feeling “motivated” and 17 explained that she got “herself to get out of ‘sweat pants’ for 3 days this 18 week.’” (AR at 473). By mid-February, Plaintiff reported a regression from 19 being triggered and thinking about her past sexual trauma. (AR at 474). In 20 late-February, Plaintiff reported “increased anxiety [and] over thinking about 21 if she can ever get a job with her fibromyalgia.” (AR at 475). 22 Plaintiff’s anxiety increased in March of 2015. Plaintiff complained of 23 anxiety over finances and worrying about “how she is going to take care of 24 herself after being denied social security.” (AR at 476). She also reported 25 decreased ability to sleep, which led to “ruminating over the past.” (AR at 26 477). When Plaintiff was able to sleep again, she slept for 20 hours. (Id.). In 1 disability and financial needs. (AR at 478). The following week, Plaintiff 2 was withdrawn and “cried hysterically during” the session. (AR at 479). She 3 complained of increased depression and flashbacks from sexual trauma. (Id.). 4 In April of 2015, Plaintiff “seemed better” and reported “increased 5 energy and relaxation.” (AR at 480, 484). She reported “feeling goo[d] and 6 empowered” and was “open and more positive.” (Id.). Plaintiff also indicated 7 that “increased physical activities” decreased her depression. (AR at 484). 8 Plaintiff’s mood continued to be positive through May 2015. (AR at 485- 9 87). In early June of 2015, Plaintiff reportedly was searching for a job as a 10 minister and taking a palliative care class. (AR at 488). But, on June 17, 11 2015, Plaintiff reported having a “hard week” and feeling “more lonely and 12 scared.” (AR at 489). She explained that she was “ruminating and stressing 13 over financials.” (Id.). The following week, Plaintiff explained that she was 14 “emotional” and was “grieving and missing her father.” (AR at 490). 15 On July 8, 2015, Plaintiff reported “feeling better” and that a recent 16 visit with her family “helped stabilize her mood and that she was feeling 17 increased connection and less shame.” (AR at 491). On July 15, 2015, 18 Plaintiff’s mood was euthymic and her functional status was intact. (AR at 19 492). But, on July 22, 2015, Plaintiff’s mood was depressed, and she reported 20 lack of motivation and frustration. (AR at 494). 21 In early August of 2015, Plaintiff was anxious and frustrated. (AR at 22 496). The following week, Plaintiff was feeling “more hopeful.” (AR at 498). 23 By the end of August 2015, Plaintiff was feeling “empowered,” but struggled 24 with less intrusive flashbacks during the night. (AR at 499). 25 Plaintiff reported feeling better on September 2, 2015. (AR at 500). 26 Her mood was euthymic and she had decreased depression, anxiety, lack of 1 loss of interest. (Id.). But, by mid-September Plaintiff’s mood was again 2 depressed and she had increased depression, anxiety, lack of motivation, 3 frustration, and loss of interest. (AR at 502). The following week, Plaintiff 4 was again euthymic. (AR at 504). 5 On November 3, 2015, Plaintiff felt “more depressed” and Dr. Wooden 6 added Methylfolic acid vitamin to help her antidepressants work better. (AR 7 at 508). On November 24, 2015, Plaintiff was “feeling better” and “going out 8 to the movies. (AR at 509). On December 1, 2015, however, Plaintiff was 9 “[f]eeling heavy hearted” and reported “wanting to cry but feeling unable to.” 10 (AR at 510). Dr. Wooden noted that Plaintiff “cried quite a bit during [the] 11 session.” (Id.). By her next appointment on December 15, 2015, Plaintiff was 12 feeling “empowered and positive.” (AR at 511). 13 Plaintiff Saw Vicki Grove, LMFT from May 9, 2017 to February 5, 2019. 14 (AR at 691-756, 1288-1324). On May 9, 2017, Plaintiff presented with “stress 15 of not working, being on disability, living with [mother], losing friendships, 16 weight loss, and wanting a sex life.” (AR at 756). Plaintiff’s mood was 17 euthymic and her mental status examination was normal. (Id.). Plaintiff 18 again presented with a euthymic mood on May 23, 2017. (AR at 754). But, 19 on May 30, 2017, Plaintiff was depressed and reported widespread pain, a 20 “terrifying” brain fog, and difficulty at social outings. (AR at 751). Plaintiff 21 felt broken and cried. (Id.). 22 On June 13, 2017, Plaintiff was excited about an upcoming trip to San 23 Francisco, but asked her therapist to help her with “waiting, living in the 24 moment, and not panicking over things she can’t control.” (AR at 749). The 25 following week, Plaintiff was depressed and tearful. (AR at 747). On July 25, 26 2017, Plaintiff was again “[e]uthymic” as she discussed her trip to San 1 expressed an interest in learning how to avoid that. (Id.). The next six 2 therapy sessions show a fluctuation in Plaintiff’s mood. One week she was 3 anxious, the next euthymic, and the third she was anxious and depressed. 4 (AR at 739-43). Plaintiff reported being an “emotional wreck” during the 5 third week with increased anxiety. (AR at 739). On September 5, 2017—the 6 fourth week—Plaintiff was still anxious and reported flashbacks over the 7 past week. (AR at 737). The next week, she was euthymic. (AR at 735). 8 However, Plaintiff reported a “big cry” the prior Sunday and stated that she 9 “[h]asn’t showered since last Monday night—not sure why.” (Id.). On 10 September 19, 2017, Plaintiff was dysphoric. (AR at 733). 11 Plaintiff’s mood continued to fluctuate. On September 26, 2017, 12 Plaintiff was depressed and grieved “over [the] loss of everything.” (AR at 13 731). On October 10, 2017, Plaintiff was depressed and anxious. (AR at 729). 14 She reported flashbacks and poor sleep. (Id.). Plaintiff remained depressed 15 and anxious until December 19, 2017, reporting increased anxiety and a 16 “reprocessing” of a previous rape. (AR at 718-27). She discussed her 17 financial stressors and “[g]rief over never having children.” (AR at 718, 721, 18 725). 19 On January 9, 2018 and January 18, 2018, Plaintiff was euthymic and 20 reported an “improved mood and energy.” (AR at 714-16). Plaintiff returned 21 to an anxious mood on January 25, 2018. (AR at 712). She remained anxious 22 on February 1, 2018. (AR at 710). On February 8, 2018, Plaintiff was 23 depressed, anxious, and tired. (AR at 707). She “sobbed throughout” her 24 therapy session. (Id.). By the following week, Plaintiff’s mood fluctuated 25 again and she was euthymic. (AR at 705). Plaintiff was anxious by her next 26 session and complained of “[s]queezing anxiety in [her] throat.” (AR at 703). 1 returning to a euthymic mood on March 20, 2018. (AR at 697, 699, 701). On 2 March 29, 2018, Plaintiff was still euthymic and stated that she had no 3 “PTSD symptoms over [the] past week.” (AR at 695). However, on April 3, 4 2018, Plaintiff’s anxiety had returned. (AR at 693). 5 Plaintiff’s mood continued to fluctuate between depressed and anxious 6 and euthymic throughout the rest of 2018 and January of 2019, when 7 Plaintiff last saw Vicki Grove, LMFT. (AR at 1288-1324). Plaintiff’s mood 8 was more often depressed and anxious throughout this time. 9 During these therapy sessions, reference is made to Plaintiff’s multiple 10 personalities. For example, in March of 2018, Plaintiff thought “Little Sara 11 may be using candy as a way to cope with the fear of going to sleep.” (AR at 12 697); (see also AR at 699) (“Little Sara came forward and stated she was 13 afraid to sleep because when she sleeps he comes to get her.”). On April 3, 14 2018, Plaintiff “checked in with Little Sara about anxiety” and “Middle Sara” 15 was “angry and wanted to be left alone.” (AR at 693). 16 On August 21, 2018, Plaintiff explained that the “[g]irls are tired and 17 quiet,” but they returned the following week and remained constant until late 18 November of 2018. (AR at 1290-1309). For example, on October 2, 2018, 19 Plaintiff “explored thoughts and feeling regarding Kavanaugh case and how 20 it is triggering all the girls.” (AR at 1300). Later in October, “Midler” agreed 21 to address a belief that she has done really bad things and “Little and Anne 22 agreed to support her.” (AR at 1304). On November 27, 2018, Plaintiff was 23 “unable to access Little or Middler.” (AR at 1310). “The girls” returned at 24 her next session on December 4, 2018. (AR at 1312). In January of 2019, 25 Plaintiff talked about how the girls share her concerns over her dog and also 26 shared in her joy during a trip to Palm Springs. (AR at 1319). Although 1 regularly interacted with them. 2 Plaintiff’s functional status was listed as intact during her therapy 3 sessions, but the progress notes themselves show that Plaintiff’s mood waxed 4 and waned and that she consistently interacted with her multiple 5 personalities, even with treatment. As such, the ALJ’s decision to discredit 6 Plaintiff’s symptom testimony because she was “responsive to treatment” is 7 not supported by substantial evidence. 8 b. Daily Activities 9 The ALJ recognized that Plaintiff does have severe impairments, but 10 found that “they do not appear to significantly limit her daily functional 11 abilities.” (AR at 29). He noted that Plaintiff does laundry, “operates her 12 own motor vehicle for transportation,” maintains her own hygiene, handles 13 finances apropriately, goes out to socialize, takes trips to visit friends or go on 14 vacation, walks regularly, and has even applied for work in the past. (AR at 15 29-30). 16 There are “two grounds for using daily activities to form the basis of an 17 adverse credibility determination:” (1) where the plaintiff’s testimony 18 contradicts her activities of daily living; and (2) where the activities of daily 19 living meet “the threshold for transferable work skills.” Orn v. Astrue, 495 20 F.3d 625, 639 (9th Cir. 2007). The ALJ “must make specific findings relating 21 to [the daily] activities and their transferability [to work skills] to conclude 22 that a claimant’s daily activities warrant an adverse credibility 23 determination.” Orn, 495 F.3d at 639 (internal quotation marks and citation 24 omitted). 25 The Ninth Circuit has cautioned that a plaintiff need not be “utterly 26 incapacitated” to be disabled. Fair, 885 F.2d at 603. “[T]he mere fact that a 1 driving a car, or limited walking for exercise, does not in any way detract 2 from her credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 3 1044, 1050 (9th Cir. 2001). Some activities, such as walking, are “not 4 necessarily transferable to the work setting with regard to the impact of 5 pain” because a plaintiff “may do these activities despite pain for therapeutic 6 reasons.” Id. “[T]hat does not mean she could concentrate on work despite 7 the pain or could engage in similar activity for a longer period given the pain 8 involved.” Id. 9 The ALJ did not make any precise finding that any of Plaintiff’s specific 10 activities were not commensurate with her symptom testimony and did not 11 make any finding that her activities of daily living were transferable to a 12 work setting. In any event, many of the activities Plaintiff reported— 13 socializing, shopping, caring for herself, and walking for treatment—do not 14 “meet the threshold for transferable work skills,” and are not probative of 15 Plaintiff’s disability status. See Orn, 495 F.3d at 639. Therefore, the ALJ 16 was required to demonstrate that Plaintiff’s activities contradicted her other 17 testimony to rely on her daily activities as a basis to not fully credit her 18 testimony. 19 Plaintiff testified “that she has difficulty reading” yet, reported to her 20 therapist in August of 2018 that she was reading the Little House on the 21 Prairie series and belongs to a book club. (AR at 29-30). Beyond that, the 22 ALJ does not specifically identify statements contradictory to Plaintiff’s 23 activities of daily living. (Id.). The Court finds that having “difficulty 24 reading” and reading or participating in a book club are not mutually 25 exclusive. Plaintiff can participate in a book club and read books despite 26 having a difficult time focusing on them. This inconsistency between 1 convincing reason to reject her testimony. 2 Accordingly, the ALJ’s reliance on Plaintiff’s activities of daily living are 3 not clear and convincing reasons to discount her symptom statements. 4 c. Remand for Further Proceedings 5 The law is well established that the decision whether to remand for 6 further proceedings or simply to award benefits is within the discretion of the 7 Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); 8 McCallister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. 9 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for further 10 proceedings is warranted where additional administrative proceedings could 11 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 12 (9th Cir. 1984); Lewin, 654 F.2d at 635. When error exists in an 13 administrative determination, “the proper course, except in rare 14 circumstances, is to remand to the agency for additional investigation or 15 exploration.” INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotation 16 marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). 17 Accordingly, the Court recommends the case be remanded for further 18 administrative action consistent with the findings presented herein. 19 III. CONCLUSION 20 Based on the foregoing, the Court RECOMMENDS that the District 21 Court GRANT Plaintiff’s Merits Brief and REMAND this case for further 22 proceedings consistent with the findings presented herein. This Report and 23 Recommendation of the undersigned Magistrate Judge is submitted to the 24 United States District Judge assigned to this case, pursuant to the provisions 25 of 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States 26 District Court for the Southern District of California. 1 ||must be filed with the court and served on all parties no later than March 9 2021. The document should be captioned “Objections to Report and 3 || Recommendations.” 4 IT IS FURTHER ORDERED that any reply to the objections shall be 5 || filed with the Court and served on all parties no later than April 1, 2021. 6 || The parties are advised that failure to file objections within the specified time 7 ||may waive the right to raise those objections on appeal of the Court’s order. 8 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 9 IT IS SO ORDERED. ° Dated: March 10, 2021 + uk | [ Hon. Mitchell D. Dembin 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27