Prear v. Commissioner of the Social Security Administration

Filing 19

ORDER - The Commissioner's decision denying benefits is VACATED, and the case is REMANDED to the agency for further proceedings. The Clerk shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 7/17/18. (DXD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Antoinette Prear,
Plaintiff,

10
11

ORDER

v.

12

No. CV-17-02028-PHX-JAT

Nancy A. Berryhill,
Acting Commissioner of Social Security,

13

Defendant.

14
15
16
17
18
19
20
21
22
23
24
25

Pending before the Court is Plaintiff Antoinette Prear’s (“Plaintiff”) appeal from
the Social Security Commissioner’s (the “Commissioner”) denial of her application for a
period of disability, disability insurance benefits, and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq.,
1381 et seq. (2015). (Doc. 16 at 1.) 1 Plaintiff argues that the Administrative Law Judge
(the “ALJ”) erred in his evaluation of the medical opinion evidence and his evaluation of
Plaintiff’s subjective symptom testimony. The Court now rules on Plaintiff’s appeal.
I.

Background
The parties are familiar with the background information in this case, and it is

summarized in the ALJ’s decision. (See Doc. 13-3 at 23, 25–29.) Accordingly, the Court
will not restate such information here.

26
27
28

1

Plaintiff filed an “Opening Statement,” which Defendant and the Court construe
as the Opening Brief. (Doc. 16.)

1
2

II.

Legal Standard
The ALJ’s denial of disability benefits may be set aside “only when the ALJ’s

3

findings are based on legal error or not supported by substantial evidence in the record.”

4

Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). “‘Substantial

5

evidence’ means more than a mere scintilla, but less than a preponderance, i.e., such

6

relevant evidence as a reasonable mind might accept as adequate to support a

7

conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing

8

Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

9

“The inquiry here is whether the record, read as a whole, yields such evidence as

10

would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

11

Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). When considering the

12

evidence, “a reviewing court must consider the entire record as a whole and may not

13

affirm simply by isolating a ‘specific quantum of supporting evidence.’” Id. (quoting

14

Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). “If the evidence can reasonably

15

support either affirming or reversing the [ALJ]’s conclusion, the court may not substitute

16

its judgment for that of the [ALJ].” Flaten v. Sec’y of Health & Human Servs., 44 F.3d

17

1453, 1457 (9th Cir. 1995). This necessarily means that “[i]f the evidence can support

18

either outcome, the Commissioner’s decision must be upheld.” Benton, 331 F.3d at 1035.

19

It is a “fundamental rule of administrative law” that a reviewing court, in dealing

20

with a judgement which an administrative agency alone is authorized to make, may only

21

make its decision based upon evidence discussed by the ALJ. Sec. & Exch. Comm’n v.

22

Chenery Corp., 332 U.S. 194, 196 (1947); see Connett v. Barnhart, 340 F.3d 871, 874

23

(9th Cir. 2003). Thus, the Court’s review is constrained only to “the reasons the ALJ

24

asserts,” and the evidence supporting those reasons. See Connett, 340 F.3d at 874; Frank

25

v. Schultz, 808 F.3d 762, 764 (9th Cir. 2015). Similarly, when challenging an ALJ’s

26

decision, “issues which are not specifically and distinctly argued and raised in a party’s

27

opening brief are waived.” Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919

28

(9th Cir. 2001) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000)

-2-

1

(en banc), vacated and remanded on other grounds, 535 U.S. 391 (2002)); see also Bray

2

v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (applying the

3

principle to Social Security appeals). Thus, the Court “will not manufacture arguments

4

for an appellant.” Arpin, 261 F.3d at 919 (citation omitted).

5

A.

Definition of a Disability

6

A claimant can qualify for Social Security disability benefits only if she can show

7

that, among other things, she is disabled. 42 U.S.C. § 423(a)(1)(E). A disability is defined

8

as an “inability to engage in any substantial gainful activity by reason of any medically

9

determinable physical or mental impairment which can be expected to result in death or

10

which has lasted or can be expected to last for a continuous period of not less than 12

11

months.” Id. § 423(d)(1)(A).

12

A person is disabled only if her “physical or mental impairment or impairments

13

are of such severity that [she] is not only unable to do [her] previous work but cannot,

14

considering [her] age, education, and work experience, engage in any other kind of

15

substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

16

B.

17

The Social Security regulations set forth a five-step sequential evaluation process

18

for evaluating a claim of disability. 20 C.F.R. § 404.1520(a)–(f); see also Benton, 331

19

F.3d at 1034. Finding the claimant “disabled” or “not disabled” at any step ends the

20

inquiry. 20 C.F.R. § 404.1520(a)(4). If such a finding cannot be made at a particular step,

21

then the ALJ moves on to the next step. Id. The claimant bears the burden of proof for

22

steps one to four, but the burden shifts to the Commissioner for step five. Tackett v. Apfel,

23

180 F.3d 1094, 1098 (9th Cir. 1999).

The Five-Step Evaluation Process

24

At the first step, the ALJ determines if the claimant is engaged in substantial

25

gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in substantial

26

gainful activity, then the claimant is not disabled. Id.

27

At the second step, the ALJ considers the medical severity of the claimant’s

28

impairments. Id. § 404.1520(a)(4)(ii). “If [the claimant] do[es] not have a severe

-3-

1

medically determinable physical or mental impairment . . . we will find that [the claimant

2

is] not disabled.” Id. A “severe impairment” is one that “significantly limits [the

3

claimant’s] physical or mental ability to do basic work activities.” Id. § 404.1520(c).

4

Basic work activities are “the abilities and aptitudes necessary to do most jobs.” Id.

5

§ 404.1522(b). Examples of basic work activities include:

6
7
8
9
10
11

(1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; (2)
Capacities for seeing, hearing, and speaking; (3)
Understanding, carrying out, and remembering simple
instructions; (4) Use of judgement; (5) Responding
appropriately to supervision, co-workers and usual work
situations; and (6) Dealing with changes in a routine work
setting.
Id. § 404.1522(b)(1)–(6).

12

Additionally, unless the claimant’s impairment is expected to result in death, “it

13

must have lasted or be expected to last for a continuous period of at least 12 months” for

14

the claimant to be found disabled. Id. § 404.1509 (incorporated by reference in id.

15

§ 404.1520(a)(4)(ii)).

16

At the third step, having found a medically determinable impairment, the ALJ

17

considers the severity of the claimant’s impairment. Id. § 404.1520(a)(4)(iii). This

18

consideration requires the ALJ to determine if the claimant’s impairment “meets or

19

equals” one of the impairments listed in the regulations. Id. If the impairment meets or

20

equals a listed impairment, then the ALJ will find that the claimant is disabled. Id. If the

21

claimant’s impairment does not meet or equal a listed impairment, then the ALJ will

22

assess the claimant’s “residual functional capacity based on all the relevant medical and

23

other evidence in [the claimant’s] case record.” Id. § 404.1520(e). In assessing the

24

claimant’s “residual functional capacity” (“RFC”), the ALJ will consider the claimant’s

25

“impairment(s), and any related symptoms, such as pain, [that] may cause physical and

26

mental limitations that affect what [the claimant] can do in a work setting. [The

27

claimant’s] residual functional capacity is the most [the claimant] can still do despite [the

28

claimant’s] limitations.” Id. § 404.1545(a)(1).

-4-

1

At the fourth step, the ALJ considers the claimant’s ability to perform her “past

2

relevant work.” Id. § 404.1520(a)(4)(iv). To do this the ALJ compares the claimant’s

3

residual function capacity with the physical and mental demands of the claimant’s past

4

relevant work. Id. § 404.1520(f). If the claimant can still perform her past relevant work,

5

the ALJ will find that the claimant is not disabled. Id. § 404.1520(a)(4)(iv).

6

At the fifth and last step, the ALJ considers if the claimant can “make an

7

adjustment to other work.” Id. § 404.1520(a)(4)(v). In making this determination, the

8

ALJ considers the claimant’s residual functional capacity and the claimant’s age,

9

education, and work experience. Id. If the ALJ finds that the claimant can make an

10

adjustment to other work, then the claimant is not disabled. Id. If the ALJ finds that the

11

claimant cannot make an adjustment to other work, then the claimant is disabled.

12

In making a determination on the claimant’s disability through the five-step

13

process, the ALJ must “consider all evidence in [the claimant’s] case record.” Id.

14

§ 404.1520(a)(3). This evidence includes medical opinions, records, self-reported

15

symptoms, and third-party reporting. See Id. §§ 404.1527, 404.1529; SSR 06-3p, 71 Fed.

16

Reg. 45593-03 (Aug. 9, 2006).

17

C.

The ALJ’s Evaluation Under the Five-Step Process

18

The ALJ found that Plaintiff had not engaged in substantial gainful activity since

19

August 1, 2014 and that Plaintiff suffered from two severe impairments, 2 satisfying the

20

first and second steps of the process. (Doc. 13-3 at 25.) 3 Under the third step, the ALJ

21

found that Plaintiff does not have “an impairment or combination of impairments that

22
2

23
24
25

The ALJ found that Plaintiff has the following severe impairments: essential
hypertension and monoclonal gammopathy. (Doc. 13-3 at 25.) The ALJ also found that
Plaintiff has the following “nonsevere” impairments: fibromyalgia and neuropathy. (Id.)
The ALJ found that these “nonsevere” impairments “do not have more than a minimal
effect on the claimant’s ability to perform basic work activities.” (Id.)
3

26
27
28

Plaintiff was examined by two state agency consultants regarding the possibility
of a psychiatric medically determinable impairment. (Doc. 13-3 at 26.) Both consultants
found that Plaintiff had mild limitations due to psychiatric impairments. (Id.) The ALJ
gave little weight to the medical opinions of these consultants because there is little
psychiatric evidence on the record and Plaintiff did not receive psychiatric treatment.
(Id.) Because there was no psychiatric diagnosis from a medically acceptable source, the
ALJ found no psychiatric medically determinable impairment was established. (Id.)
-5-

1

meets or medically equals the severity of one of the listed impairments” in the Social

2

Security regulations that automatically result in a finding of disability. (Id. at 26.)

3

The ALJ then conducted the RFC determination with “careful consideration of the

4

entire record.” (Id. at 27.) The ALJ determined that Plaintiff has the RFC to “perform a

5

wide range of light work . . . except the claimant is limited to lifting-carrying 20 pounds

6

occasionally and 10 pounds frequently; is limited to sitting six hours and

7

standing-walking six hours in an eight-hour workday; and must work in a climate

8

controlled environment out of heat.” (Id.)

9

At step four, the ALJ compared Plaintiff’s RFC with the physical and mental

10

demands of Plaintiff’s past relevant work. (Id. at 29.) The ALJ determined that Plaintiff

11

“is capable of performing past relevant work as an insurance agent . . . , medical secretary

12

. . . , and admissions representative.” (Id.) The ALJ went on to state that “[t]his work does

13

not require the performance of work-related activities precluded by the claimant’s

14

residual functional capacity.” (Id.)

15

Because the ALJ found that Plaintiff can still perform her past relevant work, the

16

ALJ found that Plaintiff was not “under a disability, as defined in the Social Security

17

Act.” (Id.) Because the ALJ found that Plaintiff was not disabled at step four, the ALJ did

18

not move on to step five. (Id.)

19

III.

Analysis

20

Plaintiff asserts that the ALJ erred in denying her benefits for two reasons: (1) the

21

ALJ improperly evaluated the medical opinion evidence and (2) the ALJ failed to

22

reasonably evaluate Plaintiff’s subjective symptom testimony. (Doc. 16 at 1.)

23

A.

24

The Court first turns to Plaintiff’s argument that the ALJ improperly “failed to

25
26

Whether the ALJ Improperly Evaluated the Medical Opinion Evidence

consider the treating Physicians[’] opinions.” (Id.)
1.

Legal Standard

27

The Ninth Circuit distinguishes between the opinions of three types of physicians:

28

(1) those who treat the claimant (“treating physicians”); (2) those who examine but do not

-6-

1

treat the claimant (“examining physicians”); and (3) those who neither examine nor treat

2

the claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

3

1995), as amended (Apr. 9, 1996). A treating physician’s opinion is entitled to

4

“substantial weight.” Bray, 554 F.3d at 1228.

5

“Although a treating physician’s opinion is generally afforded the greatest weight

6

in disability cases, it is not binding on an ALJ with respect to the existence of an

7

impairment or the ultimate determination of disability.” Batson v. Comm’r of Soc. Sec.

8

Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (quoting Tonapetyan v. Halter, 242 F.3d

9

1144, 1149 (9th Cir. 2001)). An ALJ may reject the uncontradicted opinion of a treating

10

physician, but to do so the ALJ must state “clear and convincing reasons that are

11

supported by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198

12

(9th Cir. 2008) (citation omitted). If a treating physician’s opinion is contradicted by an

13

examining physician, then the ALJ may reject the treating physician’s opinion only if

14

there are “specific and legitimate reasons that are supported by substantial evidence in the

15

record.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)

16

(quoting Lester, 81 F.3d at 830). An ALJ “need not accept the opinion of any physician,

17

including a treating physician, if that opinion is brief, conclusory, and inadequately

18

supported by clinical findings.” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)

19

(quoting Bray, 554 F.3d at 1228).

20

2.

Analysis

21

Plaintiff argues that the ALJ “failed to consider the treating Physicians[’]

22

opinions.” (Doc. 16 at 1.) However, Plaintiff does not present any specific arguments or

23

facts to support such a claim. (See id.) Ordinarily, the Court will not address an issue if a

24

party fails to argue that issue with specificity in their brief. Carmickle, 533 F.3d at 1161

25

n.2. See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003)

26

(holding courts “ordinarily will not consider matters on appeal that are not specifically

27

and distinctly argued in an appellant’s opening brief”). Of course, this practice is relaxed

28

when a party is proceeding pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). When

-7-

1

a party’s brief is filed pro se, it is “to be liberally construed, and a pro se complaint,

2

however inartfully pleaded, must be held to less stringent standards than formal pleadings

3

drafted by lawyers.” Id. (internal quotation marks and citations omitted).

4

Plaintiff filed her initial brief pro se. (See Doc. 16 at 1.) Because her brief was

5

filed pro se, the Court is inclined to construe it liberally and hold it “to less stringent

6

standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. Thus, the

7

Court will examine the ALJ’s alleged failure to consider the treating physicians’

8

opinions, even though Plaintiff has failed to present specific arguments or facts to support

9

her claim.

10

Here, the ALJ described Dr. McClinton and Dr. Abankwu as treating physicians.

11

(Doc. 13-3 at 28.) 4 Both treating physicians list significant limitations that would impede

12

Plaintiff’s ability to perform her past relevant work in their opinions. (Id.) These

13

limitations include sitting and standing-walking less than one hour in an eight hour

14

workday and a likelihood of missing multiple days of work per month. (Id.) The ALJ

15

listed Dr. Heller as an examining physician. (Id.) The examining physician found no

16

limitations that would impede Plaintiff’s ability to perform her past relevant work in his

17

opinion. (Id.) Thus, the opinions of the treating physicians are contradicted by the

18

opinions of an examining physician. To reject the opinions of the treating physicians in

19

favor of the opinion of an examining physician, the ALJ must only provide “specific and

20

legitimate reasons that are supported by substantial evidence in the record.” Carmickle,

21

533 F.3d at 1164.

22

The ALJ gave the examining physician’s opinion “great weight . . . because the

23

medical evidence substantiates it and because [the examining] doctor is well-versed in the

24

assessment of functionality as it pertains to the disability provisions of the Social Security

25
4

26
27
28

The ALJ described Dr. Abankwu as a treating physician. (Doc. 13-3 at 28.) Yet,
the medical records evaluated by the ALJ indicate that Dr. Abankwu is an examining
physician as he only examined Plaintiff once. (Doc. 13-12 at 93); see 20 C.F.R. §§
404.1527, 416.927. However, because Dr. Abankwu and Dr. McClinton gave similar
opinions and the ALJ discounted both opinions on the same grounds, the ALJ’s
description of Dr. Abankwu is not material to the Court’s analysis herein. (See Doc. 13-3
at 28.)
-8-

1

Act Regulations.” (Doc. 13-3 at 28.) The ALJ also determined that the examining

2

physician’s opinion should be afforded more weight because it was “consistent with

3

[Plaintiff]’s ability to do household chores and cook.” (Id.) Conversely, the ALJ gave the

4

treating physicians’ opinions less weight stating that “their opinions are not consistent

5

with the medical evidence and [Plaintiff]’s daily activities.” (Id.)

6

a.

Medical Evidence

7

An ALJ can give a treating physician’s opinion less weight if it is “inconsistent

8

with other substantial evidence in the record.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.

9

2007). The treating physicians found that Plaintiff’s significant limitations spring from a

10

myriad set of diagnoses including fibromyalgia and peripheral neuropathy. (Doc. 13-9 at

11

117; Doc. 13-12 at 93; Doc. 13-10 at 40.)

12

The ALJ discounted the treating physicians’ diagnoses of Plaintiff’s fibromyalgia

13

based upon a single consultation report from Dr. Unzek who appears to have only seen

14

Plaintiff once. (Doc. 13-3 at 26; Doc. 13-10 at 89–92.) The only reason provided by the

15

ALJ for discounting the diagnoses of fibromyalgia was that Dr. Unzek found Plaintiff did

16

not have “a significant number of trigger points” needed to meet the diagnosis of

17

fibromyalgia. (Doc. 13-3 at 26.) While an opinion that Plaintiff lacked the necessary

18

number of trigger points to support the diagnoses of fibromyalgia in a single examination

19

is a specific reason, it is not a legitimate reason to discount a diagnosis of fibromyalgia.

20

See Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017) (holding that several tests

21

yielding normal results were not enough to overturn a treating physician’s diagnosis of

22

fibromyalgia because the symptoms of fibromyalgia “wax and wane” and an examination

23

of “longitudinal records” is needed to determine if a patient has fibromyalgia); see also

24

Orn, 495 F.3d at 630 (holding that, in determining if substantial evidence supports a

25

decision, a court may not isolate a “specific quantum of supporting evidence”).

26

The ALJ further stated that Plaintiff’s peripheral neuropathy was “very mild” and

27

“treated with Cymbalta.” (Doc. 13-3 at 26.) The ALJ, though, did not provide any

28

additional specific information on why this medical evidence was not consistent with the

-9-

1

treating physicians’ diagnoses. (See Doc. 13-3 at 26–28.) The ALJ neglected to state why

2

this medical evidence contradicts the diagnoses from the treating physicians or counters

3

their determinations of Plaintiff’s limitations. (See id.)

4

Moreover, the ALJ found that Plaintiff’s “hypertension can be controlled and her

5

vision was noted to be stable.” (Doc. 13-3 at 28.) However, the ALJ did not specify how

6

these facts contradict the findings of Plaintiff’s treating physicians. Because the ALJ did

7

not set out a “detailed and thorough summary of the facts and conflicting clinical

8

evidence” to support his decision to afford less weight to the treating physicians’

9

diagnoses, the ALJ failed to assert specific and legitimate reasons for why the medical

10

evidence is not consistent with the treating physicians’ opinions. Reddick v. Chater, 157

11

F.3d 715, 725 (9th Cir. 1998).

12

b.

Daily Activities

13

An ALJ may take into account a patient’s daily activities when determining what

14

weight to give a treating physician’s opinion. See Revels, 874 F.3d at 664 (examining if

15

plaintiff’s daily activities were consistent with treating physician’s testimony to

16

determine if ALJ gave a specific and legitimate reason for giving less weight to that

17

treating physician’s opinion). The treating physicians found that Plaintiff was limited to

18

sitting for about one hour in an eight-hour workday, standing-walking for about one hour

19

in an eight-hour workday, carrying up to ten pounds only occasionally, and limited in

20

lifting, handling, and fingering. (Doc. 13-3 at 28.) The ALJ noted that these opinions

21

were not consistent with Plaintiff’s daily activities of taking care of plants, preparing

22

meals, and doing household chores. (Id.) The ALJ went on to say that Plaintiff’s daily

23

activities “are not limited to the extent one would expect, given the complaints of

24

disabling symptoms and limitations.” (Id.)

25

It is true that Plaintiff admits to being able to perform certain daily activities such

26

as taking care of plants, preparing meals, and doing household chores. (Doc. 13-10 at 3;

27

Doc. 13-7 at 37.) However, the ALJ failed to provide specific and legitimate reasons as to

28

why the ability to perform these daily activities weakens the legitimacy of the treating

- 10 -

1

physicians’ opinions. (See Doc. 13-3 at 28.) There are “critical differences between

2

activities of daily living and activities in a full-time job.” Garrison v. Colvin, 759 F.3d

3

995, 1016 (9th Cir. 2014). “[M]any home activities are not easily transferable to what

4

may be the more grueling environment of the workplace, where it might be impossible to

5

periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

6

Here, the ALJ did not provide an explanation for why Plaintiff’s ability to conduct daily

7

home activities would necessarily prove Plaintiff’s ability to conduct work activities. (See

8

Doc. 13-3 at 28.) Thus, the ALJ failed to provide specific and legitimate reasons for why

9

Plaintiff’s daily activities are not consistent with the treating physicians’ opinions.

10

3.

Conclusion

11

Although treating physicians’ opinions are not binding on an ALJ, the ALJ erred

12

in rejecting the opinions of Plaintiff’s treating physicians without providing specific and

13

legitimate reasons for doing so. While the ALJ did state reasons for rejecting the opinions

14

of the treating physicians, the ALJ failed to ensure these reasons rose to the required level

15

of “specific and legitimate.” Carmickle, 533 F.3d at 1164. Accordingly, the ALJ erred in

16

part in rejecting the opinions of the treating physicians.

17

B.

18
19
20

Whether the ALJ Failed to Reasonably Evaluate Plaintiff’s Subjective
Symptom Testimony

The Court next turns to Plaintiff’s argument that the ALJ failed to reasonably
evaluate Plaintiff’s subjective symptom testimony. (Doc. 16 at 1.) 5

21

1.

Legal Standard

22

An ALJ must engage in a two-step analysis to determine whether a claimant’s

23

testimony regarding subjective pain or symptoms is credible. Garrison, 759 F.3d at

24
25
26
27
28

5

Similar to Plaintiff’s claim that the ALJ improperly evaluated the medical
opinion evidence, Plaintiff does not clearly provide specific arguments and facts to
support her second claim. (See Doc. 16 at 1.) However, because Plaintiff filed her brief
pro se, the Court will construe it liberally and hold it “to less stringent standards than
formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. Thus, the Court will
examine the ALJ’s alleged failure to reasonably evaluate Plaintiff’s subjective symptom
testimony, even though Plaintiff has failed to present specific arguments or facts to
support her claim. See supra Part III.A.2.
- 11 -

1

1014. 6 “First, the ALJ must determine whether the claimant has presented objective

2

medical evidence of an underlying impairment ‘which could reasonably be expected to

3

produce the pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. Astrue, 504

4

F.3d 1028, 1035–36 (9th Cir. 2007)). At this step, a claimant is not required to show “that

5

her impairment could reasonably be expected to cause the severity of the symptom she

6

has alleged; she need only show that it could reasonably have caused some degree of the

7

symptom.” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).

8

Additionally, a claimant is not required to produce “objective medical evidence of the

9

pain or fatigue itself, or the severity thereof.” Id.

10

Second, if the claimant satisfies the first step of the analysis, then “the ALJ can

11

reject the claimant’s testimony about the severity of her symptoms only by offering

12

specific, clear and convincing reasons for doing so.” Id. at 1014–15 (quoting Smolen, 80

13

F.3d at 1281). “Unless an ALJ makes a finding of malingering based on affirmative

14

evidence thereof, [the ALJ] may only find an applicant not credible by making specific

15

findings as to credibility and stating clear and convincing reasons for each.” Robbins, 466

16

F.3d at 883; see Lingenfelter, 504 F.3d at 1036. The ALJ may not fulfill this requirement

17

by making general findings; “rather, the ALJ must identify what testimony is not credible

18

and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. “The

19

clear and convincing standard is the most demanding requirement in Social Security

20

cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 925 (9th Cir. 2002).

21

In assessing a claimant’s credibility, an ALJ may consider a range of factors,

22

including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s

23

reputation for lying, prior inconsistent statements concerning the symptoms, and other

24

testimony by the claimant that appears less than candid; (2) unexplained or inadequately

25
26
27
28

6

SSR 96-7p lays out the two-step process an ALJ must follow. SSR 96-7p, 1996
WL 374186, at *2 (July 2, 1996). SSR 96-7p was superseded by SSR 16-3p, but SSR 163p has an effective date of March 16, 2016. SSR 16-3p, 2016 WL 1119029, at *1 (Mar.
16, 2016). However, the ALJ issued his opinion on January 25, 2016, before the effective
date of SSR 16-3p. Accordingly, the Court will use SSR 96-7p as guidance when
evaluating Plaintiff’s subjective symptom testimony.
- 12 -

1

explained failure to seek treatment or to follow a prescribed course of treatment; and (3)

2

the claimant’s daily activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)

3

(quoting Smolen, 80 F.3d at 1284). Other factors that an ALJ may consider when

4

determining the credibility of a claimant’s symptoms include: the location, duration,

5

frequency, and intensity of symptoms; factors that precipitate and aggravate the

6

symptoms; medications taken and treatments received for symptom relief; any other

7

measures for symptom relief; and any other factors concerning the individual’s functional

8

limitations and restrictions due to pain or other symptoms. See SSR 96-7p, 1996 WL

9

374186, at *3. If evidence reasonably supports either confirming or reversing the ALJ’s

10

decision, the Court “may not substitute [its] judgment for that of the ALJ.” Ghanim, 763

11

F.3d at 1163 (quoting Batson, 359 F.3d at 1196).

12

2.

Analysis

13

In the first step, the ALJ found “that [Plaintiff]’s medically determinable

14

impairments could reasonably be expected to cause the alleged symptoms.” (Doc. 13-3 at

15

28.) Moreover, the ALJ made no apparent finding of malingering based on the

16

affirmative evidence. (See id.) However, the ALJ concluded that “the claimant’s

17

statements concerning the intensity, persistence and limiting effects of these symptoms

18

are not entirely credible.” (Id.) Because the ALJ found Plaintiff’s statements not credible,

19

the ALJ must make “specific findings as to credibility and stat[e] clear and convincing

20

reasons for each.” Robbins, 466 F.3d at 883.

21

Plaintiff argues that the ALJ improperly rejected her testimony about the severity

22

of her symptoms because she did not appear to be disabled. (Doc. 16 at 1.) However, the

23

ALJ did not indicate that his credibility analysis was based on Plaintiff’s appearance.

24

(Doc. 13-3 at 23–29.) The ALJ provided that his credibility analysis was based upon

25

Plaintiff’s daily activities and the medical evidence.

26

a.

Daily Activities

27

The Ninth Circuit holds it appropriate to consider a claimant’s daily activities as a

28

factor in assessing a claimant’s subjective symptom testimony. See Revels, 874 F.3d at

- 13 -

1

667–68; see also SSR 96-7p, 1996 WL 374186, at *3 (stating that in evaluating a

2

claimant’s subjective symptom testimony, an ALJ must consider “medical and other

3

evidence” (emphasis added)). While the Social Security Act “does not require that

4

claimants be utterly incapacitated to be eligible for benefits,” Smolen, 80 F.3d at 1284

5

n.7, an “ALJ may discredit a claimant’s testimony when the claimant reports participation

6

in everyday activities indicating capacities that are transferable to a work setting,” Molina

7

v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citation omitted). Moreover, even if the

8

daily activities undertaken by the claimant “suggest some difficulty functioning, they

9

may be grounds for discrediting the claimant’s testimony to the extent that they

10

contradict claims of a totally debilitating impairment.” Id. (citing Turner v. Comm’r of

11

Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010)).

12

Here, the ALJ stated that Plaintiff’s daily activities were “not limited to the extent

13

one would expect, given the complaints of disabling symptoms and limitations.” (Doc.

14

13-3 at 28.) Specifically, the ALJ cited Plaintiff’s ability to take care of plants, prepare

15

meals, and do household chores as undermining her subjective symptom testimony. (Id.)

16

However, the ALJ did not specifically state “clear and convincing reasons” to support his

17

finding that Plaintiff’s daily activities undermined her subjective symptom testimony.

18

(See id.); Robbins, 466 F.3d at 883. While Plaintiff does engage in a number of daily

19

home activities, “many home activities are not easily transferable to what may be the

20

more grueling environment of the workplace, where it might be impossible to

21

periodically rest or take medication.” Fair, 885 F.2d at 603; see also supra Part III.A.2.b.

22

In arguing that Plaintiff’s ability to undertake daily activities undermines her subjective

23

symptom testimony, the ALJ failed to clarify how Plaintiff’s ability to water and trim

24

plants, spend forty-five minutes preparing meals, and spend two or three hours a day

25

doing unspecified household chores contradict Plaintiff’s claims that her symptoms

26

prohibit her from working. (See Doc. 13-10 at 3; Doc. 13-7 at 37–38.) Thus, the ALJ

27

failed to state “clear and convincing reasons” to support his finding that Plaintiff’s daily

28

activities undermined her subjective symptom testimony. Robbins, 466 F.3d at 883.

- 14 -

1

b.

Medical Evidence

2

The ALJ determined that “the objective findings in this case fail to provide strong

3

support for the claimant’s allegations of disabling symptoms and limitations.” (Doc. 13-3

4

at 28.) While an ALJ can consider a lack of medical evidence as a factor in his credibility

5

analysis, “an ALJ may not reject a claimant’s subjective complaints based solely on a

6

lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v.

7

Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (citation omitted). The reasoning behind this

8

rule is that “[s]ymptoms cannot be measured objectively through clinical or laboratory

9

diagnostic techniques.” SSR 96-7p, 1996 WL 374186, at *6.

10

Because the ALJ’s reasons for rejecting Plaintiff’s subjective symptom testimony

11

based on Plaintiff’s daily activities were not clear and convincing, the objective medical

12

evidence alone “is not sufficient to support the ALJ’s credibility finding as to [P]laintiff’s

13

pain and symptom statements associated with [her] physical impairments.” Strawn v.

14

Berryhill, No. 2:16-CV-3249-HRH, 2017 WL 3393403, at *7 (D. Ariz. Aug. 8, 2017).

15

Thus, the ALJ’s analysis of the medical evidence alone cannot support the ALJ’s

16

rejection of Plaintiff’s subjective symptom testimony.
3.

17

Conclusion

18

The ALJ erred in his credibility determination by failing to state, with specificity,

19

clear and convincing reasons as to why Plaintiff’s daily activities undermined her

20

subjective symptom testimony. The record reflects that Plaintiff engages in activities such

21

as taking care of plants, preparing meals, and household chores, but the ALJ did not state

22

how the ability to undertake these activities translates into the workplace. See Fair, 885

23

F.2d at 603. Because the ALJ erred in his credibility determination regarding Plaintiff’s

24

daily activities, the medical evidence alone is not enough to reject Plaintiff’s subjective

25

symptom testimony. See Burch, 400 F.3d at 680. Accordingly, the ALJ erred in part in

26

discrediting Plaintiff’s subjective symptom testimony.

27

D.

28

“[A]dministrative adjudications are subject to the same harmless error rule as

Remand

- 15 -

1

generally applies to civil cases.” Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012)

2

(citing Shinseki v. Sanders, 556 U.S. 396, 406 (2009)). Reversal due to error requires a

3

determination of prejudice. Id. In determining prejudice, the Court must analyze the error

4

“in light of the circumstances of the case.” McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.

5

2011). The question the Court must answer when the ALJ has erred is “whether the

6

ALJ’s decision remains legally valid, despite such error.” Carmickle, 553 F.3d at 1162.

7

The ALJ’s reasoning regarding the treating physicians’ opinions and Plaintiff’s

8

subjective symptom testimony was erroneous, and these errors are integral to the fair

9

determination of benefits. The ALJ erred in failing to assert specific and legitimate

10

reasons for why the medical evidence is not consistent with the treating physicians’

11

opinions. While the ALJ did cite to specific evidence to support his finding regarding

12

Plaintiff’s diagnoses, the evidence cited by the ALJ did not appear to take into account

13

the “record, read as a whole.” Gallant, 753 F.2d at 1453.

14

Additionally, the ALJ erred in failing to assert specific and legitimate reasons for

15

why Plaintiff’s daily activities are not consistent with the treating physicians’ opinions.

16

Specifically, the ALJ failed to support the contention that Plaintiff’s ability to take care of

17

plants, prepare meals, and do household chores runs counter to the treating physicians’

18

diagnoses.

19

The ALJ also failed to assert clear and convincing reasons for why Plaintiff’s daily

20

activities undermine her subjective symptom testimony. “The clear and convincing

21

standard is the most demanding requirement in Social Security cases,” Moore, 278 F.3d

22

at 925, and the minimal information provided by Plaintiff and cited by the ALJ regarding

23

Plaintiff’s daily activities is not enough to meet this standard.

24

Having found that the ALJ committed harmful error, the Court has discretion to

25

remand the case for further development of the record or for an award of benefits.

26

Reddick, 157 F.3d at 728. “Where remand would unnecessarily delay the receipt of

27

benefits, judgement for the claimant is appropriate.” Garrison, 759 F.3d at 1020 (quoting

28

Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988)). When

- 16 -

1

determining if an award of benefits is warranted, the Ninth Circuit uses a “credit-as-true”

2

rule. Id. The Court should credit evidence that was rejected by the ALJ as true and

3

remand to the ALJ with instructions to calculate and award benefits if:

4

(1) the record has been fully developed and further
administrative proceedings would serve no useful purpose;
(2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the
claimant disabled on remand.

5
6
7
8

Id.

9

Even if all requirements are met, “the credit-as-true rule may not be dispositive of

10

the remand question in all cases.” Id. Instead, the credit-as-true rule envisions “some

11

flexibility.” Connett, 340 F.3d at 876. This flexibility “is properly understood as requiring

12

courts to remand for further proceedings when . . . an evaluation of the record as a whole

13

creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021.

14

Considering “whether the record as a whole is free from conflicts, ambiguities, or

15

gaps, whether all factual issues have been resolved, and whether the claimant’s

16

entitlement to benefits is clear under the applicable legal rules,” the Court finds that

17

“further administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec.

18

Admin., 775 F.3d 1090, 1103–04 (9th Cir. 2014) (citation omitted). Thus, remand is

19

necessary so the record may be developed to: (1) include specific findings on the treating

20

physicians’ diagnoses based upon the entire medical record; (2) provide specific reasons

21

regarding why Plaintiff’s daily activities undermine or support the treating physicians’

22

diagnoses; and (3) evaluate Plaintiff’s daily activities and their ability to translate to the

23

workplace.

24

///

25

///

26

///

27

///

28

///

- 17 -

1

IV.

Conclusion

2

For the reasons stated above,

3

IT IS ORDERED that the Commissioner’s decision denying benefits is

4

VACATED, and the case is REMANDED to the agency for further proceedings. The

5

Clerk of Court shall enter judgment accordingly. 7

6

Dated this 17th day of July, 2018.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

7

To the extent a mandate is required, the judgment shall serve as the mandate in
this case.
- 18 -