Kim M. Zambrano v. Carolyn W. Colvin

Filing 21

MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson: IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.LET JUDGMENT BE ENTERED ACCORDINGLY. (rh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10

) NO. EDCV 16-586-KS
)
)
) MEMORANDUM OPINION AND ORDER
)
NANCY A. BERRYHILL,1 Acting
)
Commissioner of Social Security,
)
Defendant.
)
_________________________________ )
KIM M. ZAMBRANO
Plaintiff,
v.

11
12
13
14
15
16
17

INTRODUCTION

18
19
20

Kim M. Zambrano (“Plaintiff”) filed a Complaint on March 30, 2016, seeking review

21

of the denial of her applications for a period of disability, disability insurance (“DI”), and

22

supplemental security income (“SSI”). On April 28, 2016, the parties consented, pursuant to

23

28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt.

24

Nos. 8-10.) On February 2, 2017, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt.

25

No 20.) Plaintiff seeks an order reversing the Commissioner’s decision and ordering the

26
27
28

1

The Court notes that Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration.
Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended
to substitute Nancy A. Berryhill for Carolyn Colvin as the defendant in this action.

1

1

payment of benefits or, in the alternative, remanding for further proceedings. (Joint Stip. at

2

14.) The Commissioner requests that the ALJ’s decision be affirmed or, in the alternative,

3

remanded for further proceedings. (See id. at 15-16.) The Court has taken the matter under

4

submission without oral argument.

5
SUMMARY OF ADMINISTRATIVE PROCEEDINGS

6
7
8

On July 5, 2012, Plaintiff, who was born on December 2, 1962, filed applications for a

9

period of disability, DI, and SSI.2 (See Administrative Record (“AR”) 220, 229.) Plaintiff

10

alleged disability commencing May 1, 2012 due to diabetes, anxiety, depression, chronic

11

fibromyalgia, and insomnia. (AR 252.) Plaintiff previously worked as a child monitor

12

(DOT 301.677-010) and home attendant (DOT 354.377-014). (Id. 47; see also id. 253.)

13

After the Commissioner denied Plaintiff’s applications initially (AR 87-88) and on

14

reconsideration (id. 111-12), Plaintiff requested a hearing (see id. 131-32). Administrative

15

Law Judge Alan Markiewicz (“ALJ”) held a hearing on January 9, 2014 (id. 54-86).

16

Plaintiff, who was represented by counsel, testified before the ALJ as did vocational expert

17

(“VE”) Sandra Fioretti.

18

unfavorable decision, denying Plaintiff’s applications for DI and SSI. (Id. 36-49.) On July

19

1, 2015, the Appeals Council denied Plaintiff’s request for review. (Id. 14-16.)

(See AR 54-86.)

On January 31, 2014, the ALJ issued an

20
21

SUMMARY OF ADMINISTRATIVE DECISION

22
23

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

24

May 1, 2012 alleged onset date. (AR 38.) The ALJ further found that Plaintiff had the

25

following severe impairments: fibromyalgia; disc disease of the cervical spine; diabetes;

26

depressive disorder, not otherwise specified; and anxiety. (Id.) The ALJ also noted that

27
2

28

Plaintiff was 49 years old on the application date and thus met the agency’s definition of a younger individual.
See 20 C.F.R. §§ 404.1563(c), 416.963(c).

2

1

Plaintiff had a history of obesity. (Id. at 38-39.) The ALJ concluded that Plaintiff did not

2

have an impairment or combination of impairments that met or medically equaled the

3

severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§

4

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926), and he explained his

5

rationale for finding that Plaintiff’s impairments did not meet or equal Listings 12.04 and

6

12.06. (Id. 39-40.) The ALJ determined that Plaintiff had the residual functional capacity

7

(“RFC”) to perform medium work with the following limitations:

8
9

[Plaintiff] can lift and/or carry 50 pounds occasionally and 25 pounds

10

frequently; she can stand and/or walk for six hours out of an eight-hour

11

workday; she can sit for six hours out of an eight-hour workday; she cannot

12

climb ladders, ropes, or scaffolds; she can frequently climb ramps and stairs;

13

she is limited to simple repetitive tasks; and she is limited to no more than

14

occasional contact with coworkers and no contact with the general public.

15
16

(AR 40-41.)

17
18

The ALJ found that Plaintiff was unable to perform her past relevant work as a child

19

monitor and home attendant. (AT 47.) However, the ALJ determined that Plaintiff was

20

capable of performing jobs that exist in significant numbers in the national economy,

21

including the representative occupations of kitchen helper (DOT 318.687-010), hand

22

packager (DOT 920.587-018), and industrial cleaner (DOT 381.687-018).

23

Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined in

24

the Social Security Act, from the alleged onset date through the date of the ALJ’s

25

decision. (Id. at 49.)

26

\\

27

\\

28

\\

3

(Id. 48-49.)

1

STANDARD OF REVIEW

2
3

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

4

determine whether it is free from legal error and supported by substantial evidence in the

5

record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence

6

is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a

7

reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of

8

Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the

9

evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s

10

findings if they are supported by inferences reasonably drawn from the record.” Molina v.

11

Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

12
13

Although this Court cannot substitute its discretion for the Commissioner’s, the Court

14

nonetheless must review the record as a whole, “weighing both the evidence that supports

15

and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v.

16

Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted);

17

Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ

18

is responsible for determining credibility, resolving conflicts in medical testimony, and for

19

resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

20
21

The Court will uphold the Commissioner’s decision when the evidence is susceptible

22

to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

23

2005). However, the Court may review only the reasons stated by the ALJ in his decision

24

“and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at

25

630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not

26

reverse the Commissioner’s decision if it is based on harmless error, which exists if the error

27

is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error,

28

4

1

‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487,

2

492 (9th Cir. 2015) (internal citations omitted).

3
DISCUSSION

4
5
6

Plaintiff alleges that the ALJ failed to properly evaluate the credibility of Plaintiff’s

7

subjective complaints and the credibility of the lay witness, Kimberly Victor, Plaintiff’s

8

daughter. (Joint Stip. at 3.)

9
10

I.

Plaintiff’s Credibility

11
12

A. Plaintiff’s Subjective Complaints

13
14

The first issue in dispute is whether the ALJ properly evaluated the credibility of

15

Plaintiff’s statements about her symptoms and limitations. (Joint Stip. at 3.) In her Adult

16

Function Report, dated September 10, 2012, Plaintiff stated that she cannot concentrate and

17

experiences mood swings. (AR 259.) She finds it difficult to manage the pain from her

18

fibromyalgia and experiences dizziness when she moves her head up or down. (AR 259.)

19

She can walk half a block before needing to rest for a period of five minutes. (AR 264.)

20
21

Plaintiff finds cleaning and cooking to be painful and exhausting. (AR 260.) Plaintiff

22

is responsible for caring for her husband and children by cooking, cleaning, and doing

23

laundry, however her daughter has been helping her run errands, take care of the kids, and

24

cook because Plaintiff is too exhausted. (AR 260-61.) Plaintiff stated that her daughter has

25

been preparing all of the meals “lately.” (AR 261.) When Plaintiff is able to cook, it takes

26

her about 40 minutes to prepare a meal. (AR 261.) Plaintiff also indicated that she is able to

27

wash and fold laundry but unable to carry a full laundry basket. (See AR 261.) Plaintiff

28

stated that it takes her three hours to wash and fold the laundry. (AR 261.)

5

1

Plaintiff’s daughter sometimes helps Plaintiff get dressed when she is unable to do it

2

herself. (AR 260.) Plaintiff stated that she “can’t stand the pain to change clothes,” “can’t

3

always wash [her] hair,” her arms hurt when she washes her body, it is painful to brush her

4

hair, and she gets dizzy when she bends down to shave her legs. (AR 260.)

5
6

Plaintiff indicated that she is able to drive a car and shops three times a week for a

7

period of 30 minutes to two hours. (AR 262.) Plaintiff stated that she tries to engage in the

8

following activities “every day [or] as much as [she] can:” going outside; sitting and talking;

9

attending barbeques; watching TV; and visiting. (AR 263.) She stated that she goes

10

shopping, to the doctor’s office, and to friends’ houses “on a regular basis,” but she needs

11

her daughter to accompany her “sometimes” when her anxiety or depression is bothering

12

her. (AR 263.)

13
14

At the January 9, 2014 hearing, Plaintiff testified that she was taking the following

15

medications:

Norco; Cymbalta; Gabapentin; Benazepril; Metformin; Ibuprofen; Advair

16

diskus; Alprazolam; Abilify; Hydroxyzine; and Robaxin. (AR 67.) She testified that “they

17

keep changing my medication trying to get things under control, but they can’t do it. Once

18

something seems like it’s working, I just fall back again.” (AR 67.) She testified that she

19

can lift a gallon of milk very briefly (AR 69) and is unable to lift a laundry basket full of

20

laundry (AR 70). She estimated she could lift about five pounds. (AR 70.) She estimated

21

that she could sit for 20 minutes without needing a break and could stand for 10 to 20

22

minutes without needing a break. (AR 71.) She testified that she has difficulty using her

23

hands. (AR 27.) She also testified that the doctors told her not to look straight up or straight

24

down. (AR 81.)

25
26

Plaintiff described her depression and anxiety as “chronic but . . . worse now.” (AR

27

72.) At around the time of her applications for DI and SSI, her head would spin and she

28

would start crying over nothing.

(AR 72.)

6

She testified that she became unable to

1

concentrate on television shows and had the TV moved out of her room. (AR 75.) She

2

testified that she cannot handle being around a lot of people. (AR 74.) She testified that she

3

has an anxiety attack every day. (AR 77.) She takes medication for the anxiety attacks but

4

the medication is not effective. (AR 78.) She testified that when she has an anxiety attack

5

she needs to be by herself. (AR 79.) Sometimes she needs more than a day to recover from

6

an anxiety attack. (AR 79.) Plaintiff also testified that she suffers from five 15-minute

7

crying spells each week. (AR 79-80.)

8
9

Plaintiff testified that spends “a good part of most of the days” in bed. (AR 75.) She

10

testified that her daughter prepares all of the meals. (AR 75.) Plaintiff testified that she is

11

able to drive “once in a while.” (AR 76.) She goes shopping twice a week with her

12

daughter. (AR 76.)

13
14

B. Applicable Law

15
16

An ALJ must make two findings before determining that a claimant’s pain or symptom

17

testimony is not credible. Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir.

18

2014). “First, the ALJ must determine whether the claimant has presented objective medical

19

evidence of an underlying impairment which could reasonably be expected to produce the

20

pain or other symptoms alleged.” Id. (quoting Lingenfelter, 504 F.3d at 1036). “Second, if

21

the claimant has produced that evidence, and the ALJ has not determined that the claimant is

22

malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the

23

claimant’s testimony regarding the severity of the claimant’s symptoms” and those reasons

24

must be supported by substantial evidence in the record. Id.; see also Marsh v. Colvin, 792

25

F.3d 1170, 1174 n.2 (9th Cir. 2015); Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1161

26

(9th Cir. 2008) (court must determine “whether the ALJ’s adverse credibility finding . . . is

27

supported by substantial evidence under the clear and convincing standard”).

28

7

1

In weighing a plaintiff’s credibility, the ALJ may consider many factors, including:

2

“(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying,

3

prior inconsistent statements concerning the symptoms, and other testimony . . . that appears

4

less than candid; (2) unexplained or inadequately explained failure to seek treatment or to

5

follow a prescribed course of treatment; and (3) the claimant’s daily activities.” Tommasetti

6

v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). However, “subjective pain testimony cannot

7

be rejected on the sole ground that it is not fully corroborated by objective medical

8

evidence.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (emphasis added)

9

(citation omitted).

10
11

The ALJ must also “specifically identify the testimony [from the claimant that] she or

12

he finds not to be credible and . . . explain what evidence undermines the testimony.”

13

Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir.

14

2001)).

15

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).

“General findings are insufficient.”

Brown-Hunter, 806 F.3d at 493 (quoting

16
17

C. ALJ’s Credibility Determination

18
19

The ALJ found that, although Plaintiff’s medically determinable impairments could

20

reasonably be expected to cause the alleged symptoms, Plaintiff’s statements concerning the

21

intensity, persistence, and limiting effects of those symptoms were not entirely credible.

22

(AR 42.) The ALJ based his adverse credibility determination on the following: Plaintiff

23

had received routine conservative treatment for her symptoms and limitations; Plaintiff’s

24

rheumatologist had described her as “noncompliant;” Plaintiff’s reported interests, hobbies,

25

and activities of daily living – i.e., doing laundry, watching television, going grocery

26

shopping twice a week, taking care of her personal needs without assistance, reading,

27

spending time with others, and going to the movies or out to eat when able – were

28

8

1

inconsistent with her allegations; and Plaintiff’s allegations were inconsistent with the

2

objective medical evidence. (AR 42.)

3
4

D. Discussion

5
6

1.

Routine Conservative Treatment

7
8

The ALJ found that Plaintiff had the following severe impairments: fibromyalgia; disc

9

disease of the cervical spine; diabetes; depressive disorder, not otherwise specified; and

10

anxiety. (AR 38.) The ALJ also found that Plaintiff’s complaints of debilitating symptoms

11

and limitations resulting from these impairments were not credible because, inter alia, she

12

received only routine and conservative treatment. (AR 42.) Plaintiff contends that “the

13

record is void of any other suggested treatment for her diagnos[e]s . . . nor has the ALJ

14

suggested that there would be some other form of treatment that might assist in the

15

resolution of [Plaintiff’s] conditions.” (Joint Stip. at 5.) In her response, Defendant does not

16

identify any more aggressive treatment that might be effective in addressing Petitioner’s

17

symptoms and limitations. (See generally Joint Stip. at 13.)

18
19

The medical records also do not indicate that any more aggressive treatment was

20

available. On May 15, 2012, Babak Zamiri, M.D., F.A.C.P., F.A.C.R., Plaintiff’s treating

21

rheumatologist, emphasized the importance of regular exercise for managing Plaintiff’s

22

fibromyalgia and also encouraged her to use a CPAP (Continuous Positive Airway Pressure).

23

(AR 322.) At an August 21, 2012 follow-up visit, Dr. Zamiri noted that Plaintiff was

24

“unable to continue” with the CPAP machine because it was difficult to keep on. (AR 334.)

25

He recommended a referral for an MRI of Plaintiff’s cervical spine and stated that Plaintiff

26

needed “better control of depression.” (Id.) Dr. Zamiri adjusted Plaintiff’s medications and

27

told Plaintiff to return in four months. (Id.)

28

9

1

On December 11, 2012, Dr. Zamiri recommended that Plaintiff’s primary care

2

physician refer her to a psychiatrist and psychologist. (AR 395.) He advised her that,

3

because of her chronic pain, his office could not provide any additional pain therapy and she

4

would need to be seen by a pain management group. (AR 395.) The record does not

5

indicate that Plaintiff was referred to a pain management group or that Dr. Zamiri

6

recommended that her primary care physician refer her to a pain management group. (AR

7

395.)

8
9

On December 17, 2013, Dr. Zamiri remarked that Plaintiff was “non-compliant”

10

before describing her symptoms. (AR 475.) However, Dr. Zamiri did not explain his

11

statement that Plaintiff was “non-compliant” or identify any treatment regimen that Plaintiff

12

had failed to follow. (Id.) Dr. Zamiri then recommended that Plaintiff’s primary care

13

physician refer Plaintiff to a pain management group. (AR 476.) At the hearing before the

14

ALJ less than one month later, Plaintiff testified that she did not take Dr. Zamiri’s advice to

15

get a referral to pain management because she had tried pain management “years ago” and it

16

made the pain “much worse.”

17

management] was doing me more harm than like helping.” (AR 69.)

(AR 69.)

She stated that “they told me [the pain

18
19

An ALJ may rely on the conservative nature of treatment or a lack of treatment in

20

rejecting a claimant’s subjective complaint of pain. Parra v. Astrue, 481 F.3d 742, 750–51

21

(9th Cir. 2007); Johnson v. Shalala, 60 F.3d 1428, 1433-34 (9th Cir. 1995). However, “the

22

fact that treatment may be routine or conservative is not a basis for finding subjective

23

symptom testimony unreliable absent discussion of the additional, more aggressive treatment

24

options the ALJ believes are available.” Moon v. Colvin, 139 F. Supp. 3d 1211, 1220 (D.

25

Or. 2015) (citation omitted). In addition, “[c]onservative treatment is not a proper basis for

26

rejecting the claimant’s credibility when the claimant has a good reason for not seeking more

27

aggressive treatment.” Gillman v. Astrue, 829 F. Supp. 2d 999, 1008 (W.D. Wash. 2011)

28

(citing Orn, 495 F.3d at 638).

10

1

Here, the ALJ, the Commissioner, and the record fail to identify any more aggressive

2

treatment option that was available to Plaintiff, and the Center for Disease Control is

3

similarly silent on the availability of a more aggressive treatment for fibromyalgia.3 Cf.

4

Reddick, 157 F.3d at 727 (“the CDC has made it clear that no definitive treatment for

5

[Chronic Fatigue Syndrome] exists”); see also Sharpe v. Colvin, No. CV 13-01557 SS, 2013

6

WL 6483069, at *8 (C.D. Cal. Dec.10, 2013) (“surgery or other more radical options” are

7

not available to treat fibromyalgia). In the absence of any evidence in the record suggesting

8

that a more aggressive treatment was available, the ALJ was not qualified to determine on

9

his own that one existed. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ

10

is not a medical expert); see also Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ

11

may not rely on his or her own lay opinion regarding medical matters); Moon, 139 F. Supp.

12

3d at 1220.

13

approximately 10 different medications, including Abilify, an antipsychotic, Norco, an

14

opioid pain medication, Cymbalta, an anti-depressant, and two different anti-anxiety

15

medications, as “routine” and “conservative.” (See AR 67 (listing Plaintiff’s medications at

16

the time of the hearing as, inter alia:

17

depressant; Norco, an opioid pain medication; two anti-anxiety drugs, Alprazolam and

18

Hydroxyzine; Gabapentin, for nerve pain; and Robaxin, to treat both muscle spasms and

19

pain)); cf. Sharpe, 2013 WL 6483069, at *8 (Plaintiff did not receive “routine” treatment

20

where she was “consistently and heavily medicated” with approximately nine different

21

fibromyalgia or pain medications and “surgery or other more radical options” are not

22

available to treat fibromyalgia). Accordingly, the ALJ’s finding that Plaintiff relied on

23

“routine conservative” treatment is not a clear and convincing reason supported by

24

substantial evidence in the record for discounting Plaintiff’s subjective complaints.

25

\\

26

\\

Furthermore, the ALJ erred in characterizing Plaintiff’s cocktail of

Abilify, an antipsychotic; Cymbalta, an anti-

27
3

28

The Center for Disease Control recommends the following treatments for fibromyalgia: medication; exercise;
relaxation techniques; and therapy. See https://www.cdc.gov/arthritis/basics/fibromyalgia.htm (last visited Mar. 6, 2017).

11

1

2.

Noncompliance

2
3

The ALJ’s second reason for finding Plaintiff’s allegations less than fully credible was

4

his determination that Plaintiff failed to follow treatment recommendations by her

5

rheumatologist.

6

“noncompliant” when she returned for a follow-up visit. (AR 42) (citing AR 475 (“She is

7

noncompliant and returns after one year.”)).

(AR 42.)

The ALJ cites Dr. Zamiri’s comment that Plaintiff was

8
9

“Noncompliance with medical care or unexplained or inadequately explained reasons

10

for failing to seek medical treatment may cast doubt on a claimant’s subjective complaints.”

11

Stone v. Astrue, 804 F. Supp. 2d 975, 986 (D. Ariz. 2011) (citing Fair v. Bowen, 885 F.2d

12

597, 603 (9th Cir. 1989)). However, Dr. Zamiri does not state whether Plaintiff is, in fact,

13

noncompliant with a prescribed treatment regimen. His cursory statement that Plaintiff “is

14

noncompliant and returns after one year” occurs in the context of his description of

15

Plaintiff’s present illness, does not refer to any particular aspect of Plaintiff’s medical care,

16

and is not clarified, repeated, or substantiated elsewhere in the record. (See generally AR

17

42.) “Ambiguous evidence,” like Dr. Zamiri’s conclusory remark, “triggers the ALJ’s duty

18

to conduct to ‘conduct an appropriate inquiry.’” See Tonapetyan v. Halter, 242 F.3d 1144,

19

1150 (9th Cir. 2001). Accordingly, in the absence of evidence that the ALJ asked Dr. Zamiri

20

for an explanation of his vague reference to noncompliance and Dr. Zamiri responded that

21

Plaintiff had failed to follow his recommended treatment regimen, the ALJ was not entitled

22

to cite Dr. Zamiri’s offhand remark as a specific, clear, and convincing reason supported by

23

substantial evidence in the record for discounting Plaintiff’s subjective complaints.

24
25

3.

Activities of Daily Living

26
27

The ALJ’s third reason for discounting Plaintiff’s subjective complaints was that

28

Plaintiff reported hobbies and activities of daily living – namely, doing laundry, watching

12

1

television, going grocery shopping twice a week, taking care of her personal needs, reading,

2

spending time with others, and going to the movies or out to eat – that the ALJ found were

3

“not limited to the extent one would expect, given [Plaintiff’s] complaints” and required

4

many of the same physical and mental capabilities as those necessary for obtaining and

5

maintaining employment. (AR 42.) A claimant’s daily activities bear on her credibility only

6

if the level of activity is inconsistent with her claimed limitations. See Reddick, 157 F.3d at

7

722. Thus, an ALJ may rely on a plaintiff’s daily activities to support an adverse credibility

8

determination only when those activities either:

9

testimony”; or “meet the threshold for transferable work skills” – that is, where the plaintiff

10

“is able to spend a substantial part of his or her day performing household chores or other

11

activities that are transferable to a work setting.” Orn, 495 F.3d at 639; Smolen v. Chater, 80

12

F.3d 1273, 1284 n. 7 (9th Cir. 1996). Here, the ALJ did not find that Plaintiff is able to

13

spend a substantial part of her day performing activities that are transferable to a work

14

setting, only that she is able to perform some activities that require capabilities necessary for

15

obtaining and maintaining employment.

16

determination rests on his suggestion that Plaintiff’s reported activities contradict her

17

subjective complaints. This suggestion, however, is not supported by substantial evidence

18

in the record.

“contradict [the plaintiff’s] other

Accordingly, the ALJ’s adverse credibility

19
20

a. Laundry and Shopping

21
22

The ALJ cited Plaintiff’s ability to do the laundry as being inconsistent with her

23

reported symptoms and limitations. (AR 42.) The record shows, however, that Plaintiff’s

24

impairments have limited her ability to do laundry independently. Plaintiff stated in both her

25

Adult Function Report and at the hearing that she was unable to do the laundry by herself

26

because she is unable to lift a full laundry basket. (AR 261 (able to wash and fold laundry

27

but unable to carry a full laundry basket; it takes her three hours to wash and fold the

28

laundry), AR 80 (“I have to leave [the laundry] inside of the washing machine and have my

13

1

daughter get the rest of it out”).) Similarly, the ALJ cited Plaintiff’s testimony that she went

2

shopping twice a week as being inconsistent with her reported symptoms and limitations, but

3

Plaintiff testified that her daughter helps her on these trips. (AR 76.)

4
5

b. Personal Needs and Grooming

6
7

The ALJ also cited Plaintiff’s ability to take care of her personal needs without

8

assistance as being inconsistent with her reported symptoms and limitations.

Again,

9

however, the preponderance of the evidence in the record showed that Plaintiff’s

10

impairments had curtailed her ability to take care of her personal needs independently. In

11

her July 5, 2012 applications for DI and SSI, Plaintiff stated that her impairments slowed her

12

ability to take care of her personal needs. (AR 294, 300.) In her September 10, 2012 Adult

13

Function Report, Plaintiff clarified that she “can’t stand the pain to change clothes,” “can’t

14

always wash [her] hair,” her arms hurt when she washes her body, it is painful to brush her

15

hair, and she gets dizzy when she bends down to shave her legs. (AR 260.) Plaintiff stated

16

that there are times when her daughter has to help her get dressed because she is unable to do

17

it herself. (AR 260; but see AR 357 (October 25, 2012 – Plaintiff told the consulting

18

psychiatrist that she is able to take care of her hygiene and grooming).)

19
20

c. Hobbies, Interests, and Social Activities

21
22

The ALJ also cited several of the “hobbies” that Plaintiff reported on her Adult

23

Function Report as being inconsistent with her reported symptoms and limitations. (See AR

24

42 (identifying Plaintiff’s hobbies as reading, going to the movies, and going out to eat), 263

25

(Plaintiff’s hobbies on her Adult Function Report).) However, there was no evidence in the

26

record that Plaintiff read, went to the movies, or went out to eat on a daily or even on regular

27

basis after the alleged onset date. (See generally AR 263.) Instead Plaintiff indicated that

28

she performed these activities only when she was not “exhausted.” (AR 263.)

14

1

The ALJ also based his adverse credibility determination on Plaintiff’s description of

2

her social activities. (See AR 42.) At issue is Plaintiff’s report in her 2012 Adult Function

3

Report that she spent time with others by doing the following activities “every day as much

4

as [she] can:” “go outside, sit and talk, barbeque, watch TV, just visit.” (AR 263.) At the

5

January 2014 hearing, Plaintiff added that she had lost the ability to concentrate on television

6

shows, so she had the TV moved out of her bedroom. (AR 75.) She also testified that she

7

no longer goes anywhere without her daughter (AR 76), cannot handle being around a lot of

8

people (AR 74 (“a room full of people . . . drives me crazy”)), has an anxiety attack every

9

day and needs to be by herself to recover (AR 77, 79), and spends “a good part of most of

10

the days” in bed (AR 75). Accordingly, Plaintiff reported a very limited social life, which

11

was consistent with her reported symptoms and limitations. The Commissioner cannot

12

require Plaintiff, a wife and mother of three school-aged children, to lose all motivation and

13

capacity for engaging with her family and the outside world in order to credit her subjective

14

complaints of debilitating symptoms and functional limitations. Cf. Cooper v. Bowen, 815

15

F.2d 557, 561 (9th Cir. 1987) (“Disability does not mean that a claimant must vegetate in a

16

dark room excluded from all forms of human and social activity.”) (internal quotation marks

17

and citation omitted)

18
19

Thus, while there may be clear and convincing reasons supported by substantial

20

evidence for finding Plaintiff’s subjective complaints less than fully credible, Plaintiff’s

21

reported daily activities neither contradict Plaintiff’s subjective complaints nor establish that

22

Plaintiff is able to spend a substantial part of her day performing activities that are

23

transferable to a work setting. Accordingly, the ALJ erred in relying on Plaintiff’s self-

24

reported daily activities as a basis for his adverse credibility determination.

25

\\

26

\\

27

\\

28

\\

15

4.

1

Objective Medical Evidence

2
3

The ALJ’s final basis for his adverse credibility determination is that Plaintiff’s

4

description of her symptoms and limitations are not supported by the objective medical

5

evidence. (AR 42.) However, “subjective pain testimony cannot be rejected on the sole

6

ground that it is not fully corroborated by objective medical evidence.” Rollins, 261 F.3d at

7

857 (emphasis added) (citation omitted). Accordingly, even if the Court assumes arguendo

8

that the objective medical evidence of Plaintiff’s fibromyalgia, depression, and anxiety is

9

insufficient to support her description of her symptoms and limitations, this is not a legally

10

sufficient basis for the ALJ’s adverse credibility determination. On remand the ALJ must

11

revisit his adverse credibility determination and either find that Plaintiff’s allegations are

12

credible or articulate specific, clear, and convincing reasons supported by substantial

13

evidence in the record for discounting a specified portion of her complaints.

14
15

II.

ALJ Improperly Evaluated The Statements Of The Lay Witness.

16
17

A. Statements Of The Lay Witness

18
19

The second issue in dispute is whether the ALJ properly evaluated the statements of

20

the lay witness, Kimberly Victor, Plaintiff’s 30-year old daughter. On September 11, 2012,

21

in connection with Plaintiff’s applications for DI and SSI, Victor completed a Third Party

22

Adult Function Report. (AR 268-76.) She stated that Plaintiff used to be “very independent

23

and energetic’ and still “tries to cook and do laundry” for her husband and three children.

24

(AR 269.)

25

responsible for cleaning, cooking, doing the laundry, running errands, feeding the animals,

26

and driving Plaintiff’s school-aged children to and from school. (AR 269.) Victor stated

27

that Plaintiff is able to prepare food or meals maybe once a month or once every two

28

months. (AR 270.) Victor stated that Plaintiff can “sometimes” dress herself without

However, Victor stated that she, rather than Plaintiff, is now primarily

16

1

assistance, “has a hard time” bathing by herself, can “rarely” shave her legs because she gets

2

dizzy, and “once in a while” needs help getting up from the toilet due to stiff legs and

3

dizziness. (AR 269.) Victor stated that Plaintiff can do the laundry with Victor’s help and

4

encouragement (AR 270) but is unable to do house or yard work (AR 271). Victor indicated

5

that she is concerned for Plaintiff’s safety when Plaintiff goes out alone. (AR 271.) Victor

6

stated that she tries to take Plaintiff shopping daily to get Plaintiff walking around. (AR

7

271.) She stated that “shopping and family time” are Plaintiff’s hobbies, and she does them

8

whenever she feels well enough – “just not for a long time.” (AR 272.) Victor stated that

9

Plaintiff “used to do everything with the family” and be “very outgoing,” but “now she’s just

10

weak and in pain and tired.” (AR 272.) Victor indicated that Plaintiff is still able to speak

11

on the phone or visit with friends and relatives one to two times per day (AR 272), but

12

Plaintiff spends “less and less time with family and friends” (AR 273). Victor stated that it

13

is hard to get Plaintiff “out of her room/bed.” (AR 273.)

14
15

B. ALJ’s Decision And Discussion

16
17

“In determining whether a claimant is disabled, an ALJ must consider lay witness

18

testimony concerning a claimant’s ability to work.” Bruce v. Astrue, 557 F.3d 1113, 1115

19

(9th Cir. 2009) (internal quotation marks and citation omitted). “[F]riends and family

20

members in a position to observe a claimant’s symptoms and daily activities are competent

21

to testify as to [the claimant’s] condition.” Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir.

22

1993); 20 C.F.R. §§ 404.1513(d), 416.913(d) (“[W]e may also use evidence from other

23

sources to show the severity of your impairment(s). . . . Other sources include, but are not

24

limited to . . . non-medical sources (for example, spouses, parents and other caregivers,

25

siblings, other relatives, friends, neighbors, and clergy).”). Such testimony is competent

26

evidence and “cannot be disregarded without comment.” Bruce, 557 F.3d at 1115 (quoting

27

Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (internal quotation marks omitted)).

28

When rejecting the testimony of a lay witness, an ALJ must give specific reasons that are

17

1

germane to that witness. Id. “The fact that a lay witness is a family member cannot be a

2

ground for rejecting his or her testimony.” Smolen, 80 F.3d at 1289.

3
4

The ALJ found that Victor’s statements “are not credible to the extent her statements

5

are inconsistent with the residual functional capacity” he assessed – namely, that Plaintiff, a

6

then 51-year old woman with fibromyalgia, degenerative disc disease, diabetes, and a history

7

of obesity, retained the functional capacity to lift and carry 50 pounds occasionally and 25

8

pounds frequently and stand and/or walk for six hours out of an eight-hour workday. (AR

9

43.) The ALJ explained that Victor’s statements “might have been influenced by a familial

10

motivation to support [Plaintiff] as well as a financial interest in seeing [Plaintiff] receive

11

benefits in order to increase the household income.” (AR 43.) “Most importantly,” the ALJ

12

added, “[Victor’s] statements are not supported by the clinical or diagnostic medical

13

evidence.” (AR 43.)

14
15

Neither Plaintiff and Victor’s familial relationship nor their cohabitation is a

16

“germane” reason for rejecting any portion of Victor’s statements. See Smolen, 80 F.3d at

17

1289. “To the contrary, testimony from lay witnesses who see the claimant every day is of

18

particular value; [and] such lay witnesses will often be family members.” Id. (citing Dodrill,

19

12 F.3d at 919).

20
21

An inconsistency with the objective medical evidence, on the other hand, is a germane

22

reason for discounting a lay witness’ statement so long as the ALJ’s decision is supported by

23

substantial evidence. See Lewis v. Apfel, 236 F.3d 503, 511, 512 (9th Cir. 2001). However,

24

the ALJ identifies no inconsistency between Victor’s statements and the medical evidence,

25

and the Court was similarly unable to identify any such inconsistency in its review of the

26

medical record. Accordingly, the ALJ’s determination that Victor’s statements conflict with

27

the objective medical evidence is not supported by substantial evidence.

28

18

1

Plaintiff underwent an initial rheumatology consultation on May 7, 2012. (AR 43)

2

(citing AR 323-24). Dr. Zamiri’s examination revealed 18/18 tender points of fibromyalgia

3

and diffuse Heberden and Bouchard nodes. (Id.; see also AR 324.) Dr. Zamiri stated that

4

Plaintiff has “generalized musculoskeletal pain which is likely to be associated with

5

fibromyalgia.” (AR 324.) The ALJ also notes that x-rays revealed thoracic spondylosis and,

6

in the lumbar spine, mild disc space narrowing, spondylosis, and facet degenerative joint

7

disease. (AR 43) (citing AR 338, 341). On August 21, 2012, following an x-ray of her

8

cervical spine, Plaintiff was diagnosed with degenerative disc disease of the cervical spine.

9

(AR 44) (citing AR 334, 337). A subsequent MRI of Plaintiff’s cervical spine revealed:

10

congenital shortening of the pedicles throughout the cervical spinal column; left lateral

11

recess broad-band disc protrusion at C5-C6 causing moderate to severe left neural foraminal

12

and lateral recess stenosis on the left side; slight flattening of the left lateral margin of the

13

spinal cord; right lateral recess broad-based disc protrusion at C6-C7 causing mild to

14

moderate right lateral recess and neural foraminal stenosis; left paracentral disc protrusion at

15

C7-T1; and degenerative changes of the cervical spine. (AR 44) (citing AR 397). In sum,

16

no inconsistency between Victor’s statements and the results of Plaintiff’s x-rays, MRIs, and

17

physical examinations is readily apparent.

18

Victor’s statements are not credible because they conflict with the objective medical

19

evidence is not a determination supported by substantial evidence in the record, and the ALJ

20

must revisit his assessment of Victor’s credibility on remand.

Accordingly, the ALJ’s determination that

21
22

III.

Remand Is Warranted.

23
24

In light of the ALJ’s errors, the matter must be remanded. The decision whether to

25

remand for further proceedings or order an immediate award of benefits is within the district

26

court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Under the

27

credit-as-true rule, a district court may remand for an award of benefits when the following

28

three conditions are satisfied:

“(1) the record has been fully developed and further

19

1

administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide

2

legally sufficient reasons for rejecting evidence, whether claimant testimony or medical

3

opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would

4

be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995,

5

1020 (9th Cir. 2014). The third of these conditions “incorporates . . . a distinct requirement

6

of the credit-as-true rule, namely that there are no outstanding issues that must be resolved

7

before a determination of disability can be made.” Id. n.26. However, even if those three

8

requirements are met, the Court retains “flexibility” in determining the appropriate remedy

9

and may remand for further proceedings “when the record as a whole creates serious doubt

10

as to whether the claimant is, in fact, disabled within the meaning of the Social Security

11

Act.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at

12

1021).

13
14

Here, it is not clear from the record that, if the ALJ credited the statements of Plaintiff

15

and Victor, he would be required to find Plaintiff disabled on remand. Accordingly, the

16

Court remands for further development of the record, including the proper consideration of

17

the statements and testimony of Plaintiff and any lay witnesses.

18
19

CONCLUSION

20
21

Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the

22

Commissioner is REVERSED, and this case is REMANDED for further proceedings

23

consistent with this Memorandum Opinion and Order.

24

\\

25

\\

26

\\

27

\\

28

20

1
2

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this

3

Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for

4

defendant.

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

7
8

DATE: March 9, 2017

9
10

___________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

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

21