Thomas Hill v. Carolyn W. Colvin

Filing 18

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Otis D. Wright, II for Report and Recommendation (Issued) 17 . The Court approves and accepts the Report and Recommendation. IT IS HEREBY ORDERED that (1) the decision of the Commissioner of Social Security is reversed in part and the matter is remanded for further administrative action consistent with the Report and Recommendation; and (2) Judgment be entered accordingly. (Attachments: # 1 Report and Recommendation) (dml)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THOMAS HILL, 12 13 14 15 16 17 Case No. CV 15-8450 ODW(JC) Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NOS. 14, 15] Defendant. This Report and Recommendation is submitted to the Honorable 18 Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. § 636 and 19 General Order 05-07 of the United States District Court for the Central District of 20 California. 21 I. SUMMARY 22 On October 29, 2015, Thomas Hill, plaintiff (“plaintiff”) filed a Complaint 23 seeking review of the Commissioner of Social Security’s denial of plaintiff’s 24 application for benefits. 25 This matter is before the Court on the parties’ cross motions for summary 26 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). This 27 Court has taken both motions under submission without oral argument. See Fed. 28 R. Civ. P. 78; L.R. 7-15; October 29, 2015 Case Management Order ¶ 5. 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner should be REVERSED AND REMANDED for further proceedings 3 consistent with this Report and Recommendation. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On November 13, 2012, plaintiff filed an application for Disability 7 Insurance Benefits alleging disability beginning on October 1, 2007 (“alleged 8 onset date”), due to limitations in his right knee, right arm, and memory. 9 (Administrative Record (“AR”) 19, 169, 192). The Administrative Law Judge 10 (“ALJ”) examined the medical record and heard testimony from plaintiff (who was 11 represented by counsel) and vocational and medical experts on March 10, 2015. 12 (AR 31-42). 13 On July 2, 2015, the ALJ determined that plaintiff was not disabled from the 14 alleged onset date through the March 31, 2010 date last insured (“period in 15 issue”). (AR 19-26). Specifically, the ALJ found that, through the date last 16 insured: (1) plaintiff suffered from the following severe impairments: 17 degenerative disc disease of the cervical spine status post right shoulder 18 arthroplasty, and degenerative joint disease of the right knee (AR 21); 19 (2) plaintiff’s impairments, considered singly or in combination, did not meet or 20 medically equal a listed impairment (AR 21-22); (3) plaintiff retained the residual 21 functional capacity to perform the full range of medium work (20 C.F.R. 22 § 404.1567(c)) (AR 22); (4) plaintiff was capable of performing his past relevant 23 work as a heavy equipment operator/operating engineer (AR 24); and 24 (5) plaintiff’s statements concerning the intensity, persistence and limiting effects 25 of his symptoms were not entirely credible (AR 23). 26 On August 28, 2015, the Appeals Council denied plaintiff’s application for 27 review. (AR 1-3). 28 /// 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 4 unable “to engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not 7 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 8 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); see also 9 20 C.F.R. §§ 404.1509, 416.909.1 The impairment must render the claimant 10 incapable of performing the work the claimant previously performed and 11 incapable of performing any other substantial gainful employment that exists in 12 the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) 13 (citing 42 U.S.C. § 423(d)(2)(A)). 14 In assessing whether a claimant is disabled, an ALJ is required to use the 15 following five-step sequential evaluation process: 16 (1) 17 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 18 (2) Does the claimant have a medically determinable physical or 19 mental impairment that meets the duration requirement, and 20 that is sufficiently severe to limit the claimant’s ability to 21 work? If not, the claimant is not disabled. If so, proceed to 22 step three. 23 (3) 24 Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. 25 /// 26 27 28 1 To meet the so-called “duration requirement” a claimant’s impairment “[must be] expected to result in death, [or] must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 404.1509 (emphasis added). 3 1 Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. 2 If not, proceed to step four. 3 (4) Does the claimant possess the residual functional capacity to 4 perform the claimant’s past relevant work? If so, the claimant 5 is not disabled. If not, proceed to step five. 6 (5) Does the claimant’s residual functional capacity, when 7 considered with the claimant’s age, education, and work 8 experience, allow the claimant to adjust to other work that 9 exists in significant numbers in the national economy? If so, 10 the claimant is not disabled. If not, the claimant is disabled. 11 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 12 Cir. 2006) (citations omitted); see also 20 C.F.R. § 404.1520(a)(4) (explaining 13 five-step sequential evaluation process). 14 The claimant has the burden of proof at steps one through four, and the 15 Commissioner has the burden of proof at step five. Burch v. Barnhart, 400 F.3d 16 676, 679 (9th Cir. 2005) (citation omitted). 17 B. 18 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 19 benefits only if it is not supported by substantial evidence or if it is based on legal 20 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 21 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 22 (9th Cir. 1995)). 23 Substantial evidence is “such relevant evidence as a reasonable mind might 24 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 25 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but 26 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 27 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence 28 supports a finding, a court must “‘consider the record as a whole, weighing both 4 1 evidence that supports and evidence that detracts from the [Commissioner’s] 2 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 3 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 4 While an ALJ’s decision need not discuss every piece of evidence or be 5 drafted with “ideal clarity,” at a minimum it must explain the ALJ’s reasoning 6 with sufficient specificity and clarity to “allow[] for meaningful review.” Brown7 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations and internal 8 quotation marks omitted); Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 9 2003) (citations omitted); see also Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 10 2008) (ALJ must provide “accurate and logical bridge” between evidence and 11 conclusion that claimant is not disabled so reviewing court “may assess the 12 validity of the agency’s ultimate findings”) (citation and quotation marks omitted); 13 see generally 42 U.S.C.A. § 405(b)(1) (“ALJ’s unfavorable decision must, among 14 other things, “set[] forth a discussion of the evidence” and state “the reason or 15 reasons upon which it is based”). 16 An ALJ’s decision to deny benefits must be upheld if the evidence could 17 reasonably support either affirming or reversing the decision. Robbins, 466 F.3d 18 at 882 (citing Flaten, 44 F.3d at 1457). Nonetheless, a court may not affirm 19 “simply by isolating a ‘specific quantum of supporting evidence.’” Id. (citation 20 omitted). In addition, federal courts may review only the reasoning in the 21 administrative decision itself, and may affirm a denial of benefits only for the 22 reasons upon which the ALJ actually relied. Garrison v. Colvin, 759 F.3d 995, 23 1010 (9th Cir. 2014) (citation omitted). 24 Even when an ALJ’s decision contains error, it must be affirmed if the error 25 was harmless. Treichler v. Commissioner of Social Security Administration, 775 26 F.3d 1090, 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was 27 inconsequential to the ultimate nondisability determination; or (2) despite the 28 /// 5 1 error, the ALJ’s path may reasonably be discerned, even if the ALJ’s decision was 2 drafted with less than ideal clarity. Id. (citation and quotation marks omitted). 3 A reviewing court may not conclude that an error was harmless based on 4 independent findings gleaned from the administrative record. Brown-Hunter, 806 5 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 6 conclude that an error was harmless, a remand for additional investigation or 7 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 8 (9th Cir. 2015) (citations omitted). 9 IV. 10 DISCUSSION Plaintiff essentially contends that a reversal or remand is warranted because 11 the ALJ materially erred in evaluating plaintiff’s subjective complaints related to 12 the period in issue. (Plaintiff’s Motion at 2-4). This Court agrees. 13 A. 14 When determining disability, an ALJ is required to consider a claimant’s Pertinent Law 15 impairment-related pain and other subjective symptoms. 20 C.F.R. § 404.1529(a). 16 Accordingly, when a claimant presents “objective medical evidence of an 17 underlying impairment which might reasonably produce the pain or other 18 symptoms [the claimant] alleged,” the ALJ is required to determine the extent to 19 which the claimant’s statements regarding the intensity, persistence, and limiting 20 effects of his or her symptoms (“subjective statements” or “subjective 21 complaints”) are consistent with the record evidence as a whole and, consequently, 22 whether any of the individual’s symptom-related functional limitations and 23 restrictions are likely to reduce the claimant’s capacity to perform work-related 24 activities. 20 C.F.R. § 404.1529(a), (c)(4); Social Security Ruling (“SSR”) 16-3p, 25 2016 WL 1119029, at *4-*9; SSR 96-7p, 1996 WL 374186, at *1-*5.2 When an 26 27 2 Social Security Rulings reflect the Social Security Administration’s (“SSA”) official 28 interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although (continued...) 6 1 individual’s subjective statements are inconsistent with other evidence in the 2 record, an ALJ may give less weight to such statements and, in turn, find that the 3 individual’s symptoms are less likely to reduce the claimant’s capacity to perform 4 work-related activities. See SSR 16-3p, 2016 WL 1119029 at *7-*8; SSR 96-7p, 5 1996 WL 374186, at *1-*3. In such cases, when there is no affirmative finding of 6 malingering, an ALJ may “reject” or give less weight to the individual’s subjective 7 statements “by providing specific, clear, and convincing reasons for doing so.” 3 8 Brown-Hunter, 806 F.3d at 488-89. This requirement is very difficult to satisfy. 9 See Garrison, 759 F.3d at 1015 (citation omitted). 10 /// 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 (...continued) they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of the . . . Administration[,]” and are entitled to deference if they are “consistent with the Social Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Commissioner of Social Security Administration, 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security rulings). Effective March 16, 2016, the SSA issued SSR 16-3p which superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 16-3p, 2016 WL 1119029, at *1-*2, *10. SSR 16-3p became effective after the ALJ issued the decision in the instant case and the Appeals Council denied review. It is not clear whether SSR 16-3p applies retroactively. See, e.g., Ellefson v. Colvin, 2016 WL 3769359, *3 n.2 (D. Or. July 14, 2016) (observing “no binding precedent interpreting [SSR 16-3p] or whether it applies retroactively”). Nonetheless, the issue of retroactivity need not be resolved here since the ALJ’s evaluation of plaintiff’s subjective complaints in this case fails to pass muster whether SSR 16-3p or its predecessor, SSR 96-7p, governs. 3 It appears to this Court, based upon its research of the origins of the requirement that 25 there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s subjective statements absent an affirmative finding of malingering, that such standard of proof 26 remains applicable irrespective of whether SSR 96-7p or SSR 16-3p governs. See Burrell v. 27 Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th 28 Cir. 1989), Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984), Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995), and Molina, 674 F.3d at 1112). 7 1 An ALJ’s decision “must contain specific reasons” for the weight given to 2 the claimant’s statements regarding the severity of symptoms/the finding on 3 credibility, be consistent with and supported by the evidence in the case record, 4 and be clearly articulated/sufficiently specific to make clear how the ALJ 5 evaluated the individual’s symptoms/the weight the ALJ gave to the individual’s 6 statements and the reasons for that weight. SSR 16-3p, 2016 WL 1119029, at *9; 7 SSR 96-7p, 1996 WL 374186, at *2, *4. If an ALJ’s evaluation of a claimant’s 8 statements is reasonable and is supported by substantial evidence, it is not the 9 court’s role to second-guess it. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th 10 Cir. 2002) (citation omitted). B. Analysis 11 12 Here, the ALJ’s evaluation of plaintiff’s subjective complaints is expressed 13 in a single paragraph: After careful consideration of the evidence, the undersigned 14 15 finds that the [plaintiff’s] medically determinable impairments could 16 reasonably be expected to cause the alleged symptoms; however, the 17 [plaintiff’s] statements concerning the intensity, persistence and 18 limiting effects of these symptoms are not entirely credible for the 19 reasons explained in this decision. 20 (AR 23). Such boilerplate statement, however, fails to identify any specific 21 subjective statement to which the ALJ gave less than full weight, much less 22 provide any clear and convincing reason based on specific evidence in the record 23 for doing so. This was legal error. See, e.g., Treichler, 775 F.3d at 1102-03 (ALJ 24 erred by making a “single general statement that ‘the claimant’s statements 25 concerning the intensity, persistence and limiting effects of these symptoms are 26 not credible to the extent they are inconsistent with the above residual functional 27 capacity assessment,’” without identifying “sufficiently specific reasons” 28 supported by evidence in the case record for rejecting the claimant’s subjective 8 1 statements); SSR 16-3p, 2016 WL 1119029, at *9 (not enough for ALJ to make 2 conclusory statements that individual’s subjective complaints “have been 3 considered” or that subjective complaints “are (or are not) supported or 4 consistent,” or “simply to recite the factors described in the regulations for 5 evaluating symptoms”) (internal quotation marks omitted); SSR 96-7p, 1996 WL 6 374186, at *4 (same). 7 The ALJ also wrote “[t]he evidence does not show the [plaintiff’s] 8 impairments precluded performance of his residual functional capacity before the 9 date he was last insured.” (AR 23). Defendant asserts that this “provided [a] 10 legitimate reason for the [ALJ’s] adverse credibility finding[.]” (Defendant’s 11 Motion at 2) (citing AR 23). Defendant, however, does not cite any persuasive 12 legal authority which supports rejecting a claimant’s subjective statement on the 13 proffered basis. Moreover, for the reasons noted above, the ALJ’s conclusory 14 statement is not a sufficiently specific basis for giving less weight to any of 15 plaintiff’s specific subjective complaints. A general finding that unspecified 16 evidence in the record failed to show that unspecified impairments were more 17 limiting than the ALJ’s residual functional capacity assessment found for the 18 period in issue is not sufficient to permit the Court to conclude that the ALJ gave 19 reduced weight to any particular subjective complaint on a permissible ground. 20 See, e.g., Brown-Hunter, 806 F.3d at 494 (legal error where ALJ failed to identify 21 specific testimony she rejected and “link” the testimony to specific evidence in the 22 record supporting the ALJ’s determination) (citing Burrell, 775 F.3d at 1139). To the extent the foregoing reflects that the ALJ gave less weight to 23 24 plaintiff’s subjective statements solely because the objective medical evidence did 25 not substantiate the alleged severity of plaintiff’s impairment-related symptoms, 26 this was error as well. See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) 27 (en banc) (“[O]nce the claimant produces objective medical evidence of an 28 underlying impairment, an [ALJ] may not reject a claimant’s subjective complaints 9 1 based solely on a lack of objective medical evidence to fully corroborate the 2 alleged severity of pain.”) (citation omitted); see also 20 C.F.R. § 404.1529(c)(2) 3 (“statements about the intensity and persistence of [claimant’s] pain or other 4 symptoms or about the effect [such] symptoms have on [claimant’s] ability to 5 work” may not be rejected “solely because the available objective medical 6 evidence does not substantiate [claimant’s] statements” ); SSR 16-3p, 2016 WL 7 1119029, at *5 (“[W]e will not disregard an individual’s statements about the 8 intensity, persistence, and limiting effects of symptoms solely because the 9 objective medical evidence does not substantiate the degree of impairment-related 10 symptoms alleged by the individual”) (citing id.); SSR 96-7p, 1996 WL 374186, at 11 *6 (same). Defendant says “[t]he ALJ correctly rejected Plaintiff’s testimony solely 12 13 because he did not provide medical evidence establishing a disability onset date 14 before the date last insured.” (Defendant’s Motion at 3, 6) (citing SSR 88-13, 15 superseded by SSR 95-5P, superseded by SSR 96-7P, superseded by SSR 16-3p; 4 16 Bunnell, 947 F.2d at 346). Defendant again points to no current or persuasive 17 legal authority for the cited proposition. Even so, it appears that the ALJ 18 reasonably concluded that it was not necessary to determine a specific disability 19 onset date in plaintiff’s case. As the ALJ noted, the medical expert testified at the 20 hearing that there was sufficient medical evidence in the record to establish 21 disability based on listing-level impairments for plaintiff in 2013, but not at any 22 /// 23 /// 24 25 4 To the extent defendant’s argument confuses onset of claimant symptoms (i.e., one factor considered when weighing the effect a claimant’s symptoms have on the ability to work), see 26 SSR 16-3p, 2016 WL 1119029, at *6, SSR 96-7p, 1996 WL 374186, at *7, with onset of 27 disability (i.e., the first day an individual becomes “disabled as defined in the [Social Security] Act and [] regulations” considering all of the probative and relevant evidence in the record), see 28 SSR 83-20, 1983 WL 31249 at *1, such argument does not support affirming the ALJ’s decision. 10 5 1 time before the date last insured. (AR 21-22, 24, 35-37). Consequently, as to the 2 period in issue, the ALJ did not find plaintiff disabled at step three based on 3 satisfaction of a listing prior to the date last insured and, in turn, appropriately 4 proceeded to step four and evaluated plaintiff’s residual functional capacity based 5 on the available medical evidence which pertained to plaintiff’s impairments 6 during the period in issue – specifically, medical records of plaintiff’s treatment 7 after his January 2008 motorcycle accident (i.e., Exhibit 1F [AR 241-300]), and 8 the medical expert’s opinions at the hearing (based on three pages of those 9 records) regarding plaintiff’s functional abilities during the period in issue. (AR 10 21-23, 24, 35, 38-39; Exhibit 1F at 14-16 [AR 249-51]). 11 Since the ALJ found plaintiff not disabled through the date last insured at 12 step four, he was not required to determine a specific disability onset date at all. 13 Cf., e.g., Barnard v. Commissioner of the Social Security Administration, 286 Fed. 14 Appx. 989, 991-92 (9th Cir. 2008) (ALJ did not err by not determining disability 15 onset date (which normally “must be done only after a claimant is found 16 disabled”) where “ALJ properly concluded that [claimant] was not disabled at the 17 last date insured . . .”) (citation omitted). The ALJ was required, however, to 18 consider the impact of plaintiff’s subjective symptoms, along with all the other 19 relevant evidence in the record, when assessing plaintiff’s residual functional 20 capacity during the period in issue. See 20 C.F.R. §§ 404.1529(a), (d)(4), 21 404.1545(a)(3); SSR 16-3p, 2016 WL 1119029, at *11 (“We consider the 22 individual’s symptoms when determining his or her residual functional capacity 23 24 5 The ALJ referenced a May 29, 2015 letter in which the medical expert assertedly 25 indicated that he had reviewed additional medical evidence plaintiff had submitted after the hearing, and opined that “[t]he additional evidence did not change his [hearing] testimony. . . .” 26 (AR 24) (citing Exhibit 10F). Although the medical expert’s letter (referred to as Exhibit 10F) is 27 not part of the Administrative Record submitted to the Court, for purposes of the Report and Recommendation this Court accepts as true the ALJ’s unchallenged interpretation of the contents 28 thereof. 11 1 and the extent to which the individual’s impairment-related symptoms are 2 consistent with the evidence in the record.”) (footnote omitted); SSR 96-7p, 1996 3 WL 374186, at *3 (“[T]he impact of [a claimant’s] symptoms on the individual’s 4 ability to function must be considered along with the objective medical and other 5 evidence . . . as necessary, at each [] step of the [sequential evaluation] process.”) 6 (citation and footnote omitted). Again, the failure to do so was error. 7 Defendant also states “[t]he ALJ correctly rejected plaintiff’s testimony 8 because it cannot alone establish an onset date.” (Defendant’s Motion at 8). To 9 the extent defendant is arguing that plaintiff’s testimony on its own is insufficient 10 to establish disability during the period in issue, such argument is consistent with 11 Social Security regulations. See 20 C.F.R. § 404.1508; SSR 16-3p, 2016 WL 12 1119029, at *4 (“We will not find an individual disabled based on alleged 13 symptoms alone.”); SSR 96-7p, 1996 WL 374186, at *2 (“Under the regulations, 14 an individual’s statement(s) about his or her symptoms is not enough in itself to 15 establish the existence of a physical or mental impairment or that the individual is 16 disabled.”). However, to the extent defendant is arguing that plaintiff failed to 17 establish any severe impairment which met the duration requirement prior to the 18 date last insured, such an argument is belied by the ALJ’s express findings at step 19 two that “[t]hrough the date last insured” plaintiff had severe impairments of 20 “degenerative disc disease of the cervical spine status post right shoulder 21 arthroplasty and degenerative joint disease of the right knee.” (AR 21). By 22 thereafter proceeding to step three, the ALJ necessarily determined that such 23 impairments both were severe and met the duration requirement. See 20 C.F.R. 24 § 404.1520(a)(4)(ii); see also 20 C.F.R. § 404.1509 (“Unless your impairment is 25 expected to result in death, it must have lasted or must be expected to last for a 26 continuous period of at least 12 months. We call this the duration requirement.”) 27 (emphasis added). 28 /// 12 1 In addition, as defendant suggests, the ALJ might have been able to give 2 less weight to plaintiff’s subjective complaints based on other inconsistencies 3 between plaintiff’s statements and the record evidence. (Defendant’s Motion at 94 13). Since the ALJ did not do so in the administrative decision, however, this 5 Court may not affirm the ALJ’s non-disability determination on such grounds. 6 See, e.g., Brown-Hunter, 806 F.3d at 492 (“If the ALJ fails to specify his or her 7 reasons for finding claimant testimony not credible, a reviewing court will be 8 unable to review those reasons meaningfully without improperly ‘substitut[ing] 9 our conclusions for the ALJ’s, or speculat[ing] as to the grounds for the ALJ’s 10 conclusions.’”) (citation omitted). 11 Finally, this Court cannot conclude that the ALJ’s errors were harmless. 12 Plaintiff was previously found disabled as of October 29, 2012 and awarded 13 supplemental security income under Title XIV purportedly “all based on 14 [plaintiff’s] 2008 [motorcycle] accident.” (AR 34, 50, 74-75). In addition, at the 15 hearing the ALJ stated, in pertinent part, that he accepted the medical expert’s 16 testimony that plaintiff met a listing at some point in 2013 and that plaintiff’s 17 “accident caused the problems that led up to [the current disability]. . . .” (AR 3918 40, 42). Further, plaintiff testified that after his accident in 2008 he was “in and 19 out [of consciousness],” he was unable to lift his own arms or legs, or to feed 20 himself for “four months or longer,” he was discharged from the hospital directly 21 “home to bed” and had “a lot of people” caring for him, he was not able to “get up 22 and walk around on [his] own []” for four months, he had been scheduled for a 23 total knee replacement at the same time but was never able to have the surgery, 24 and that he essentially “can’t move” and his condition “hasn’t gotten better.” (AR 25 40-41). In light of the foregoing, and since the administrative decision does not 26 adequately address all of plaintiff’s specific subjective complaints and since the 27 the ALJ’s reasons for rejecting plaintiff’s subjective statements were not 28 sufficiently specific, this Court is unable to conduct a meaningful review of the 13 1 ALJ’s evaluation of plaintiff’s symptoms, and thus cannot conclude that the ALJ’s 2 errors were harmless. Cf., e.g., Brown-Hunter, 806 F.3d at 492 (“error will usually 3 not be harmless” when ALJ fails to provide specific reasons for rejecting claimant 4 testimony). 5 Accordingly, a remand is warranted to permit proper consideration of 6 plaintiff’s impairment-related symptoms. 7 V. RECOMMENDATION6 8 IT IS THEREFORE RECOMMENDED that the District Judge issue an 9 Order: (1) approving and accepting this Report and Recommendation; 10 (2) reversing, in part, the decision of the Commissioner of Social Security and 11 remanding this matter for further administrative action consistent with this Report 12 and Recommendation;7 and (3) directing that judgment be entered accordingly. 13 DATED: August 29, 2016 14 _______________/s/__________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 The Court has not adjudicated and need not adjudicate plaintiff’s other challenges to the ALJ’s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits based thereon would not be appropriate. 7 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, “additional proceedings can remedy defects in the original administrative proceeding. . . .” Garrison, 759 F.3d at 1019 (citation and internal quotation marks omitted); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remand is an option where the ALJ stated invalid reasons for rejecting a claimant’s excess pain testimony). 14

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