Robert Joseph Bierend v. Andrew Saul

• Court: District Court, C.D. California
• Decided: August 27, 2020
• Docket: 5:19-cv-02148
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 ROBERT B.,1 Case No. 5:19-cv-2148-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of Social Security,2 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Robert B. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying his applications for 21 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 The parties filed consents to proceed before the undersigned United States 23 Magistrate Judge [Dkts. 11 and 12] and briefs addressing disputed issues in the case 24 [Dkt. 18 (“Pl. Br.”), Dkt. 19 (“Def. Br.”)]. The matter is now ready for decision. 25

26 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. 27 2 Andrew M. Saul, now Commissioner of the Social Security Administration, is 28 substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d). 1 For the reasons discussed below, the Court finds that this matter should be remanded 2 for further proceedings. 3 II. ADMINISTRATIVE DECISION UNDER REVIEW 4 On May 3, 2016, Plaintiff filed his applications for SSI and DIB alleging 5 disability based on a variety of issues including knee pain, sleep apnea, hearing loss, 6 and anxiety. [Dkt. 15, Administrative Record (“AR”).] After Plaintiff’s original 7 application was denied, Plaintiff appeared and testified at a video hearing before 8 Administrative Law Judge Robert Freedman. [AR 32-54.] 9 Applying the five-step sequential evaluation process, the ALJ found that 10 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). [AR 15-25.] At 11 step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 12 since June 15, 2014, the alleged onset date. [AR 17.] At step two, the ALJ found 13 that Plaintiff suffered from severe impairments including: “osteoarthritis of the 14 bilateral knees, meniscus tear of the right knee, and status post-arthroscopic surgery 15 right knee, status post ORIF surgery of the left femur (1993), status post fracture of 16 coccyx (remote in time), hearing loss, obesity, depression, and anxiety. [AR 17.] 17 The ALJ determined at step three that Plaintiff did not have an impairment or 18 combination of impairments that meets or medically equals the severity of one of 19 the listed impairments. [AR 18.] 20 At step four, the ALJ found that Plaintiff had the residual functional capacity 21 (“RFC”) to perform a limited range of sedentary work. [AR 20.] Applying this 22 RFC, the ALJ found that Plaintiff was unable to perform his past relevant work as a 23 pizza deliverer but determined that based on his age (43 years old) and high school 24 education, he could perform representative occupations such as addresser, charge 25 account clerk, or document preparer and, thus, is not disabled. [AR 24.] 26 III. GOVERNING STANDARD 27 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 28 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 1 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 2 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec. 3 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 4 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 5 is such relevant evidence as a reasonable mind might accept as adequate to support a 6 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 7 2014) (internal citations omitted). 8 The Court will uphold the Commissioner’s decision when the evidence is 9 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 10 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 11 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 12 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 13 reverse the Commissioner’s decision if it is based on harmless error, which exists if 14 the error is “inconsequential to the ultimate nondisability determination, or if despite 15 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 16 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 17 omitted). IV. DISCUSSION 18 19 In his sole claim of error, Plaintiff argues that the ALJ failed to provide 20 sufficient reasons for rejecting his subjective testimony. [Pl.’s Br. at 5-11.] 21 Specifically, Plaintiff argues that the ALJ offered only one reason for discounting 22 his testimony: that the objective medical evidence is inconsistent with his 23 allegations of the severity of his impairments, which Plaintiff argues cannot be the 24 sole reason for rejecting his complaints. [Pl. Br. at 8-10.] As set forth below, the 25 Court agrees with Plaintiff and remands for further proceedings. 26 A. Plaintiff’s Testimony 27 At the administrative hearing, Plaintiff testified about the nature and limiting 28 effects of his condition. According to Plaintiff, he recently had surgery on his right 1 leg for a torn meniscus and he had surgery on his left leg in 1993. [AR 40.] Plaintiff 2 suffers from sleep apnea and he uses a CPAP device at least three times a week. 3 [AR 40-41.] He also suffers from hearing loss, but he does not wear a hearing aid. 4 [AR 41.] In addition to his physical impairments, Plaintiff also experiences 5 depression and anxiety for which he receives counseling every other week. [AR 6 40.] 7 When asked about his daily activities, Plaintiff testified that he lives in a 8 single-story house in a senior community with his parents. [AR 44.] With respect 9 to household chores, Plaintiff testified that he makes his bed, does light vacuuming 10 and goes grocery shopping with his mother. [AR 44.] He uses a computer to stay in 11 contact with family and put reminders on the calendar. [AR 45.] Plaintiff recently 12 had bariatric surgery which helped him lose 100 pounds. [AR 38.] Following his 13 surgery, Plaintiff attends the gym about twice a week. [AR 38.] His gym routine 14 includes “regular exercise” including push-ups, sit-ups, and lifting free weights up 15 to 10 pounds. [AR 38-39.] 16 Finally, Plaintiff testified about his functional abilities. He stated that he can 17 stand and walk for about five to twenty minutes before needing to rest. [AR 46.]. 18 He sometimes uses a cane depending on how much his knees hurt, which he 19 estimated was about once or twice a week. [AR 46-47.] He testified that he could 20 drive for about twenty minutes but would need to take a three to five-minute break 21 before resuming. [AR 47.] 22 B. Legal Standard 23 If a claimant produces objective medical evidence of an underlying 24 impairment that could reasonably be expected to produce the symptoms alleged and 25 there is no affirmative evidence of malingering, the ALJ must offer “clear and 26 convincing” reasons to reject the claimant’s testimony. Smolen v. Chater, 80 F.3d 27 1273, 1281-82 (9th Cir. 1996); see also Reddick v. Chater, 157 F.3d 715, 722 (9th 28 Cir. 1998) (“Unless there is affirmative evidence showing that the claimant is 1 malingering, the Commissioner’s reasons for rejecting the claimant’s testimony 2 must be clear and convincing.” (internal quotation omitted)). Moreover, “[t]he ALJ 3 must state specifically which symptom testimony is not credible and what facts in 4 the record lead to that conclusion.” Smolen, 80 F.3d at 1284; Holohan v. 5 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify 6 the testimony [the ALJ] finds not to be credible and must explain what evidence 7 undermines the testimony”); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 8 1991). In addition to the “ordinary techniques of credibility evaluation,” Bunnell, 9 947 F.2d at 346, the following factors may be considered in assessing credibility: (1) 10 the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s 11 testimony or between his testimony and conduct; (3) claimant’s daily living 12 activities; (4) claimant’s work record; and (5) testimony from physicians or third 13 parties concerning the nature, severity, and effect of claimant’s condition. Thomas 14 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 15 C. Analysis 16 Here, in addressing Plaintiff’s subjective complaints the ALJ found that “as 17 for the claimant’s statements about the intensity, persistence, and limiting effects of 18 his or her symptoms, they are inconsistent because the medical evidence of record 19 does not support the limitations to standing, walking, and sitting to which he 20 testified. The other limitations and activities to which he testified are consistent 21 with the medical evidence of record and accommodated by the above residual 22 functional capacity assessment.” [AR 22.] 23 Viewing the ALJ’s decision liberally, the ALJ impliedly provided two reasons 24 for finding Plaintiff less credible: (1) Plaintiff’s daily activities were inconsistent 25 with his alleged limitations and (2) there was a lack of objective medical evidence to 26 support his complaints. [Def.’s Br. at 6-10]; [AR 21-22.] 27 /// 28 /// 1 1. Daily Activities 2 Generally, inconsistency between symptom allegations and daily activities 3 may act as a clear and convincing reason to discount subjective symptom testimony. 4 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 5 346. But the mere fact that “a plaintiff has carried on certain daily activities, such as 6 grocery shopping, driving a car, or limited walking for exercise, does not in any way 7 detract from her credibility as to her overall disability.” Vertigan v. Halter, 260 8 F.3d 1044, 1050 (9th Cir. 2001). “The Social Security Act does not require that 9 claimants be utterly incapacitated to be eligible for benefits, and many home 10 activities are not easily transferable to what may be the more grueling environment 11 of the workplace, where it might be impossible to periodically rest or take 12 medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (internal citations 13 omitted); see also Molina, 674 F.3d at 1112-13 (“While a claimant need not 14 vegetate in a dark room . . . to be eligible for benefits, the ALJ may discredit a 15 claimant’s testimony when the claimant reports participation in everyday activities 16 indicating capacities that are transferable to a work setting.”) (internal citations and 17 quotations omitted). “The critical differences between activities of daily living and 18 activities in a full-time job are that a person has more flexibility in scheduling the 19 former than the latter, can get help from other persons . . . , and is not held to a 20 minimum standard of performance, as []he would be by an employer.” Bjornson v. 21 Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (cited with approval in Garrison v. 22 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). 23 Additionally, an ALJ may discredit testimony when a claimant reports 24 participation in everyday activities indicating capacities that are transferable to a 25 work setting. Molina, 674 F.3d at 1113. However, “[e]ven where those activities 26 suggest some difficulty functioning, they may be grounds for discrediting the 27 claimant’s testimony to the extent that they contradict claims of a totally debilitating 28 impairment.” Id. (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th 1 Cir. 2010); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2 2009)). “Engaging in daily activities that are incompatible with the severity of 3 symptoms alleged can support an adverse credibility determination.” Ghanim v. 4 Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)). 5 Preliminarily, the Court notes that the ALJ did not specifically discount 6 Plaintiff’s credibility based on Plaintiff’s daily activities. Instead the ALJ 7 summarized Plaintiff’s testimony regarding his daily activities and found that those 8 activities were consistent with the RFC assessment. [AR 22.] The implied 9 rationale, as suggested by Defendant, is that the ALJ found Plaintiff’s allegations of 10 total disability unreliable because his admitted activities were consistent with the 11 RFC. Despite Defendant’s post hoc explanation, without explicit elaboration from 12 the ALJ, this implication is too general to be considered adequately explained. See 13 Morinskey v. Astrue, 458 Fed. Appx. 640, 641 (9th Cir. 2011) (finding an 14 inadequate discussion of an opinion where “the ALJ’s rationale [was] implied” 15 regarding the claimant’s daily activities). Moreover, even if the Court were to try to 16 discern the ALJ’s path to this finding, see Brown-Hunter, 806 F.3d at 492, it would 17 not reveal a sufficient reason to reject Plaintiff’s credibility based on the activities of 18 daily living upon which the ALJ apparently relied for the reasons explained below. 19 In summarizing Plaintiff’s daily activities, the ALJ noted that Plaintiff can 20 make his bed, do chores such as light vacuuming, make meals, go grocery shopping 21 with his mother, drive, and use a computer. [AR 22.] But this record does not show 22 that Plaintiff’s daily activities, as he described them, are inconsistent with his 23 testimony about his impairments and limitations. “[D]isability claimants should not 24 be penalized for attempting to lead normal lives in the face of their limitations.” 25 Reddick, 157 F.3d at 722 (holding that “[o]nly if the level of activity were 26 inconsistent with [a claimant’s] claimed limitations would these activities have any 27 bearing on [the claimant’s] credibility”) (citations omitted). Plaintiff’s activities 28 such as performing some household chores, shopping, driving, using computers and 1 exercising are not necessarily inconsistent with the symptoms and limitations 2 Plaintiff described in his testimony, such as being able to only sit for thirty minutes 3 and stand for a maximum of twenty minutes at a time before needing a break. [AR 4 21-22.]; see Garrison, 759 F.3d at 1016 (warning that ALJs must be cautious in 5 concluding that daily activities are inconsistent with a claimant’s testimony, 6 “because impairments that would unquestionably preclude work and all the 7 pressures of a workplace environment will often be consistent with doing more than 8 merely resting in bed all day”). Indeed, nothing in Plaintiff’s descriptions of his 9 activities would permit an inference that Plaintiff could sit for extended periods of 10 time over his testimony that he could only sit for up to 30 minutes before needing to 11 stand and move around. See Bryant J. v. Saul, No. CV 19-07063-PJW, 2020 WL 12 4819265, at *2 (C.D. Cal. Aug. 19, 2020) (“The fact that [claimant] is able to walk 13 his dog, swim once a week, and participate in Wounded Warrior and associated 14 events does not mean [claimant] is able to perform full-time work and [claimant] 15 should not be penalized for attempting to lead a normal life despite his PTSD 16 diagnosis.”) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). 17 Nevertheless, the Court is not persuaded that the ALJ discredited Plaintiff’s 18 credibility based on his daily activities. As in Brown-Hunter, the ALJ here “simply 19 stated [his] [subjective symptom testimony] conclusion and then summarized the 20 medical evidence supporting [his] RFC determination.” Brown-Hunter, 806 F.3d at 21 494. Although the ALJ also summarized Plaintiff’s daily activities, he did not 22 identify the testimony he found not credible, and “link that testimony to the 23 particular parts of the record” supporting his determination to discount Plaintiff’s 24 subjective symptom testimony. Id. In short,”[t]his is not the sort of explanation or 25 the kind of ‘specific reasons’ we must have in order to review the ALJ’s decision 26 meaningfully, so that we may ensure that the claimant’s testimony was not 27 arbitrarily discredited,” nor can the error be found harmless. Id. (rejecting the 28 Commissioner’s argument that because the ALJ set out his RFC and summarized the 1 evidence supporting his determination, the Court can infer that the ALJ rejected the 2 Plaintiff’s testimony to the extent it conflicted with that medical evidence, because 3 the ALJ “never identified which testimony [he] found not credible, and never 4 explained which evidence contradicted that testimony.”) 5 Accordingly, even assuming the ALJ impliedly determined that Plaintiff’s 6 reported daily activities were somehow incompatible with his subjective symptom 7 allegations, this was not a specific, clear and convincing reason supported by 8 substantial evidence for discounting Plaintiff’s subjective symptom testimony. 9 2. Inconsistency with the Objective Medical Evidence 10 The only other reason provided by the ALJ to discount Plaintiff’s credibility 11 was that the objective medical evidence was inconsistent with Plaintiff’s testimony 12 regarding his limitations. [AR 22-23.] It is well-established that an “ALJ may not 13 discredit a claimant’s subjective testimony on” the sole basis that “no objective 14 medical evidence” supports the claimant’s testimony as to “the severity of the 15 subjective symptoms from which he suffers.” Robbins v. Comm’r of Soc. Sec. 16 Admin., 466 F.3d 880, 883 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345 17 (9th Cir. 1991) (“an adjudicator may not reject a claimant’s subjective complaints 18 based solely on a lack of objective medical evidence to fully corroborate the alleged 19 severity of the [symptoms].”). Thus, a lack of corroborating objective evidence was 20 an insufficient reason, on its own, for the ALJ to find Plaintiff less than fully 21 credible. Accordingly, for the reasons stated above, the Court finds that the ALJ 22 failed to provide specific, clear and convincing reasons for discounting Plaintiff’s 23 subjective symptom testimony and remand is warranted. 24 /// 25 /// 26 V. CONCLUSION 27 The decision of whether to remand for further proceedings or order an 28 immediate award of benefits is within the district court’s discretion. Harman v. 1 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 2 served by further administrative proceedings, or where the record has been fully 3 developed, it is appropriate to exercise this discretion to direct an immediate award 4 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 5 turns upon the likely utility of such proceedings”). But when there are outstanding 6 issues that must be resolved before a determination of disability can be made, and it 7 is not clear from the record the ALJ would be required to find the claimant disabled 8 if all the evidence were properly evaluated, remand is appropriate. Id. A remand 9 for an immediate award of benefits is appropriate “only in rare circumstances.” 10 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (internal citation 11 omitted). 12 The Court finds that remand is appropriate because the circumstances of this 13 case do not preclude the possibility that further administrative review could remedy 14 the ALJ’s errors. On remand, the Commissioner must re-evaluate Plaintiff’s 15 pain/subjective symptom assertions and testimony properly, which in turn may lead 16 to the formulation of a new RFC and the need for additional vocational expert 17 testimony. The Court therefore declines to exercise its discretion to remand for an 18 immediate award of benefits. See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon 19 reversal of an administrative determination, the proper course is remand for 20 additional agency investigation or explanation, “except in rare circumstances”); 21 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 22 concludes that further administrative proceedings would serve no useful purpose, it 23 may not remand with a direction to provide benefits.”). 24 For all of the foregoing reasons, IT IS ORDERED that: 25 (1) the Decision of the Commissioner is REVERSED and this matter 26 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 27 administrative proceedings consistent with this Memorandum Opinion and 28 Order; and 1 (2) Judgment be entered in favor of Plaintiff. 2 3 IT IS SO ORDERED. 4 5 || DATED: August 27, 2020 LY = 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11