Gary Alan Hagen v. Carolyn W. Colvin

Filing 27

MEMORANDUM AND ORDER by Magistrate Judge Kenly Kiya Kato. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See document for further details.) (iva)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 Plaintiff, 11 12 13 14 15 Case No. SACV 15-1379-KK GARY ALAN HAGEN, v. MEMORANDUM AND ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff Gary Alan Hagen (“Plaintiff”) seeks review of the final decision of 18 the Commissioner of the Social Security Administration (“Commissioner” or 19 “Agency”) denying his applications for Title II Disability Insurance Benefits 20 (“DIB”) and Title XVI Supplemental Security Income (“SSI”). The parties have 21 consented to the jurisdiction of the undersigned United States Magistrate Judge, 22 pursuant to Title 28 of the United States Code, section 636(c). For the reasons 23 stated below, the Commissioner’s decision is REVERSED and this action is 24 REMANDED for further proceedings consistent with this Order. 25 I. 26 PROCEDURAL HISTORY 27 28 On February 21, 2013 and April 5, 2013, Plaintiff filed applications for DIB and SSI respectively, alleging a disability onset date of March 1, 2012. 1 Administrative Record (“AR”) at 148-60. Plaintiff’s applications were denied 2 initially on February 20, 2013 and upon reconsideration on July 25, 2013. Id. at 82, 3 83, 84-86, 88-91, 93-97. On September 20, 2013, Plaintiff requested a hearing 4 before the assigned Administrative Law Judge (“ALJ”), which the Appeals 5 Council granted. Id. at 102. On February 20, 2014, Plaintiff appeared with counsel 6 and testified at a hearing before the ALJ. Id. at 31-47. A vocational expert and a 7 medical expert also testified at the hearing. Id. On June 13, 2014, the ALJ issued a 8 decision denying Plaintiff’s SSI and DIB applications. Id. at 14-24. 9 On June 25, 2014, Plaintiff filed a request to the Agency’s Appeals Council 10 to review the ALJ’s decision. Id. at 8-10. On July 8, 2015, the Agency’s Appeals 11 Council denied Plaintiff’s request for review. Id. at 1-4. On August 31, 2015, Plaintiff filed the instant action. ECF Docket No. 12 13 (“Dkt.”) 1, Compl. This matter is before the Court on the parties’ Joint 14 Stipulation (“JS”) filed September 26, 2016, which the Court has taken under 15 submission without oral argument. Dkt. 26, JS. 16 II. 17 PLAINTIFF’S BACKGROUND Plaintiff was born on October 16, 1961, and his alleged disability onset date is 18 19 March 1, 2012. AR at 148. He was fifty-one years old on the alleged disability 20 onset date and fifty-three at the time of the hearing before the ALJ. Id. at 31, 148. 21 Plaintiff has four or more years of college education and work history as a safety 22 equipment driver and as a teacher. Id. at 173. Plaintiff alleges disability based on: 23 multiple organ failure, cardiovascular disease, congestive heart failure, kidney 24 failure, diabetes, glaucoma, retinopathy, neuropathy, anemia, celiac disease, and 25 cardiomyopathy. Id. at 172. 26 /// 27 /// 28 /// 2 1 III. 2 STANDARD FOR EVALUATING DISABILITY 3 To qualify for SSI or DIB, a claimant must demonstrate a medically 4 determinable physical or mental impairment that prevents him from engaging in 5 substantial gainful activity, and that is expected to result in death or to last for a 6 continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 7 (9th Cir. 1998). The impairment must render the claimant incapable of performing 8 the work he previously performed and incapable of performing any other 9 substantial gainful employment that exists in the national economy. Tackett v. 10 11 12 13 14 15 16 17 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 1. Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 2. Is the claimant’s impairment severe? If not, the claimant is found not disabled. If so, proceed to step three. 3. Does the claimant’s impairment meet or equal one of the specific 18 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 19 the claimant is found disabled. If not, proceed to step four.1 20 21 22 23 4. Is the claimant capable of performing work she has done in the past? If so, the claimant is found not disabled. If not, proceed to step five. 5. Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled. 24 25 26 27 28 1 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s [residual functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 3 1 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 2 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). The claimant has the burden of proof at steps one through four, and the 3 4 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953- 5 54. Additionally, the ALJ has an affirmative duty to assist the claimant in 6 developing the record at every step of the inquiry. Id. at 954. If, at step four, the 7 claimant meets his burden of establishing an inability to perform past work, the 8 Commissioner must show that the claimant can perform some other work that 9 exists in “significant numbers” in the national economy, taking into account the 10 claimant’s residual functional capacity (“RFC”), age, education, and work 11 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. 12 §§ 404.1520(g)(1), 416.920(g)(1). 13 IV. 14 THE ALJ’S DECISION 15 A. STEP ONE At step one, the ALJ found Plaintiff has not “engaged in substantial gainful 16 17 activity since March 1, 2012, the alleged onset date.” AR at 17. 18 B. STEP TWO At step two, the ALJ found Plaintiff had the following severe impairments: 19 20 “diabetes mellitus with diabetic neuropathy, kidney disease stage III, hypertension, 21 and history of congenital heart failure.” Id. 22 C. STEP THREE At step three, the ALJ found Plaintiff “did not have an impairment or 23 24 combination of impairments that met or medically equaled the severity of one of 25 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. at 18-19. 26 /// 27 /// 28 /// 4 1 D. RFC DETERMINATION 2 The ALJ found Plaintiff had the following RFC: 3 to perform light work as defined in 20 CFR 404.1567(b) and 416.97(b) 4 except: the claimant can stand and walk for six hours in an eight-hour 5 workday and sit for six hours in an eight-hour workday. He can 6 occasionally climb stairs, balance, stoop, kneel, crouch, and crawl. 7 The claimant cannot climb ladders, scaffolds, or ropes. The claimant 8 can also read print found in newspapers. 9 10 Id. at 19. E. STEP FOUR 11 At step four, the ALJ found Plaintiff “is capable of performing past relevant 12 work as a Teacher, Resource . . . which does not require the performance of work- 13 related activities precluded by the claimant’s residual functional capacity.” Id. at 14 23. 15 V. 16 PLAINTIFF’S CLAIMS 17 Plaintiff presents one disputed issue: Whether the ALJ properly considered 18 Plaintiff’s testimony regarding the intensity, persistence, and limiting effects of his 19 symptoms in determining the extent to which they limit Plaintiff’s functioning. See 20 JS at 4. 21 VI. 22 STANDARD OF REVIEW 23 Pursuant to Title 42 of the United States Code, section 405(g), a district 24 court may review the Commissioner’s decision to deny benefits. The ALJ’s 25 findings and decision should be upheld if they are free of legal error and supported 26 by substantial evidence based on the record as a whole. Richardson v. Perales, 402 27 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 28 742, 746 (9th Cir. 2007). 5 1 “Substantial evidence” is evidence that a reasonable person might accept as 2 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 3 Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To 4 determine whether substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both the evidence that 6 supports and the evidence that detracts from the Commissioner’s conclusion.” 7 Reddick, 157 F.3d at 720; see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 8 2012) (stating that a reviewing court “may not affirm simply by isolating a ‘specific 9 quantum of supporting evidence’”) (citation omitted). “If the evidence can 10 reasonably support either affirming or reversing,” the reviewing court “may not 11 substitute its judgment” for that of the Commissioner. Reddick, 157 F.3d at 720- 12 21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the 13 evidence is susceptible to more than one rational interpretation, we must uphold 14 the ALJ’s findings if they are supported by inferences reasonably drawn from the 15 record.”). 16 The Court may review only the reasons stated by the ALJ in his decision 17 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 18 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be 19 considered harmless if it is “clear from the record” that the error was 20 “inconsequential to the ultimate nondisability determination.” Robbins, 466 F.3d 21 880, 885 (9th Cir. 2006) (citation omitted). 22 VII. 23 RELEVANT FACTS 24 25 26 A. PLAINTIFF’S TESTIMONY At the hearing on February 20, 2014, Plaintiff testified regarding his impairments and treatment. 27 Plaintiff testified he suffers from “shooting pain, burning pain . . . mostly in 28 the lower part of [his] legs and feet,” which can sometimes last for days. AR at 35. 6 1 Plaintiff testified that walking is difficult because it causes the pain to increase over 2 time; thus, there are many days when he does not get out of bed, and even avoids 3 walking to the bathroom “if [he] can help it.” Id. at 39, 41. When he does leave his 4 home, Plaintiff will ride the bus or he will “take a bike because walking hurts.” Id. 5 at 39. Although Plaintiff takes medication for the pain, he claims he has not noticed 6 “any reduction yet.” Id. at 35. In addition to the pain in his lower body, Plaintiff 7 claims he also gets “cramping in his hands arbitrarily,” which prevents him from 8 opening things like jars and medicine bottles. Id. at 35-36. Furthermore, Plaintiff testified he suffers from “extreme weakness and 9 10 fatigue.” Id. at 35. He testified that the “stabbing feeling of pain” and cramps in 11 his legs causes him to wake up at night such that he “[a]lmost never” feels rested 12 when he wakes up in the morning. Id. at 37. Because Plaintiff has difficulty 13 sleeping through the night, he often takes naps during the day that can last 14 anywhere from three to six hours. Id. 15 Lastly, Plaintiff testified he has suffered from diabetes since he was a 16 teenager and is consequently insulin-dependent. Id. at 37-38. Plaintiff claims his 17 diabetes causes difficulty with his vision, and thus, he has suffered “permanent 18 damage to both of the eyes.” Id. at 38. Plaintiff also stated he experiences pain and 19 “the inability to focus with any reasonable amount of time.” Id. According to 20 Plaintiff, his vision problems make it difficult to read unless the print is “very, very 21 large” or unless he has a “magnifier;” but even then, reading “takes quite a bit of 22 time and [is] not always accurate.” Id. 23 B. 24 ALJ’S ADVERSE CREDIBILITY FINDING In his June 13, 2014 decision, the ALJ found Plaintiff’s “medically 25 determinable impairments could reasonably be expected to cause the alleged 26 symptoms; however, [Plaintiff’s] statements concerning the intensity, persistence 27 and limiting effects of these symptoms are not credible to the extent they are 28 inconsistent with the above residual functional capacity assessment.” Id. at 22. In 7 1 support of this finding, the ALJ claimed: (1) the objective evidence does not 2 support Plaintiff’s allegations; (2) Plaintiff’s daily activities undermined his 3 testimony; and (3) Plaintiff’s behavior at the hearing did not support Plaintiff’s 4 alleged symptoms. Id. at 19-23. 5 VIII. 6 DISCUSSION 7 8 9 A. APPLICABLE LAW If “the record establishes the existence of a medically determinable impairment that could reasonably give rise to the reported symptoms, an ALJ must 10 make a finding as to the credibility of the claimant’s statements about the 11 symptoms and their functional effect.” Robbins, 466 F.3d at 883 (citations 12 omitted). The ALJ’s credibility determination must be supported by “findings 13 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 14 discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 15 Cir. 2008) (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). 16 The ALJ is required to engage in a two-step analysis. “First, the ALJ must 17 determine whether there is ‘objective medical evidence of an underlying 18 impairment which could reasonably be expected to produce the pain or other 19 symptoms alleged.’” Molina, 674 F.3d at 1112 (quoting Vasquez v. Astrue, 572 20 F.3d 586, 591 (9th Cir. 2009)). “If the claimant has presented such evidence, and 21 there is no evidence of malingering, then the ALJ must give ‘specific, clear and 22 convincing reasons’ in order to reject the claimant’s testimony about the severity 23 of the symptoms.” Id. “The ALJ must state specifically which symptom 24 testimony is not credible and what facts in the record lead to that conclusion.” 25 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see also Brown-Hunter v. 26 Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (holding “an ALJ does not provide 27 specific, clear, and convincing reasons for rejecting a claimant’s testimony by 28 8 1 simply reciting the medical evidence in support of his or her residual functional 2 capacity determination”). “If the ALJ’s credibility finding is supported by substantial evidence, [a 3 4 court] may not engage in second-guessing.” Thomas, 278 F.3d at 959. However, 5 an ALJ’s failure to give specific, clear, and convincing reasons to reject the 6 claimant’s testimony regarding the severity of the symptoms is not harmless, 7 because it precludes the Court from conducting a meaningful review of the ALJ’s 8 reasoning. Brown-Hunter, 806 F.3d at 489. 9 B. THE ALJ FAILED TO CONSIDER THE OVERALL DIAGNOSTIC 10 RECORD 11 An ALJ must view a claimant’s treatment records “in light of the overall 12 diagnostic record,” including where the records “consistently reveal that, despite 13 some occasional signs of improvement” the claimant continued to suffer from 14 symptoms. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2013). In addition, the 15 ALJ: 16 has an independent duty to fully and fairly develop the record and to 17 assure that the claimant’s interests are considered. . . . Ambiguous 18 evidence, or the ALJ’s own finding that the record is inadequate to 19 allow for proper evaluation of the evidence, triggers the ALJ’s duty to 20 conduct an appropriate inquiry. 21 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal citations and 22 quotation marks omitted). 23 In this case, the ALJ found that “there is simply not enough evidence of 24 debilitating impairments to make the allegations readily believable,” and thus, 25 “[t]he objective evidence does not support [Plaintiff’s] allegations.” AR at 22. 26 However, in making this finding, the ALJ did not properly consider the overall 27 diagnostic record. Specifically, the ALJ improperly disregarded treating physician 28 9 1 Dr. Debra Gutierrez’s medical assessment and improperly relied on Plaintiff’s 2 purportedly conservative treatment. Id. at 19-23. 3 (1) THE ALJ IMPROPERLY REJECTED DR. GUTIERREZ’S ASSESSMENT 4 The ALJ gave little weight to the December 2013 assessment by Debra 5 Gutierrez, M.D., one of Plaintiff’s treating physicians. See id. at 21. Although the 6 ALJ noted a treating physician’s opinion is generally entitled to special weight, the 7 ALJ found that Dr. Gutierrez’s assessment did “not rise to the level of a medical 8 opinion” because it was non-specific and did not address “the nature and severity 9 of impairments, whether the impairments met the durational requirement, and the 10 claimant’s residual functional capacity.” Id. at 21, 23. However, by rejecting Dr. 11 Gutierrez’s assessment, the ALJ ignored the extensive treatment Dr. Gutierrez 12 provided Plaintiff and neglected to fulfill his duty to “fully and fairly develop the 13 record.” Tonapetyan, 242 F.3d at 1150.2 14 Dr. Gutierrez is Plaintiff’s primary care physician. AR at 440. Earliest 15 reports from the record indicate that Dr. Gutierrez had been treating Plaintiff since, 16 at least, October 2011.3 Id. at 484. From 2011-2013, Dr. Gutierrez treated Plaintiff 17 on six different occasions. Id. at 450, 455, 463, 470, 473, 484. In December 2013, 18 after conducting an assessment of Plaintiff’s medical conditions, Dr. Gutierrez 19 opined Plaintiff was suffering from “DM retinopathy [and] neuropathy,” and that 20 due to “leg pain [and] vision loss,” Plaintiff would not be able to return to work 21 until June 9, 2014. Id. at 573. 22 23 24 25 26 27 28 2 An ALJ will seek additional evidence or clarification when the evidence received from the medical source presents an insufficient basis from which to make the disability determination. See 20 C.F.R. §§ 404.1512(e); 416.912(e) (2011). This occurs “when the report from [the] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.” Id.; Gomez v. Colvin, No. 1:14-CV-00425-SMS, 2015 WL 4617401, at *9 (E.D. Cal. July 30, 2015). 3 Although the record only provides medical records dating back to October 2011, a note from Dr. Charles Suh, Plaintiff’s cardiologist, references “labs from Dr. Gutierrez’s office from 2005.” AR at 437. 10 1 As a general rule, for disability determinations, the opinion of a treating 2 physician is preferred over the opinion of a non-treating physician. Orn, 495 F.3d 3 at 631; see 20 C.F.R. § 404.1527. “[A] finding that a treating source medical 4 opinion is not well-supported by medically acceptable clinical and laboratory 5 diagnostic techniques or is inconsistent with the other substantial evidence in the 6 case record means only that the opinion is not entitled to ‘controlling weight,’ not 7 that the opinion should be rejected.” S.S.R. 96–2p, 61 Fed. Reg. 34, 490, 34, 491 8 (July 2, 1996); Orn, 495 F.3d at 632. 9 If the ALJ determines the treating physician’s opinion is not well-supported 10 by medical evidence, the Administration instructs the ALJ to “consider specified 11 factors in determining the weight it will be given.” Orn, 495 F.3d at 631. “Those 12 factors include the ‘[l]ength of the treatment relationship and the frequency of 13 examination’ by the treating physician; and the ‘nature and extent of the treatment 14 relationship’ between the patient and the treating physician.” Id.; 20 C.F.R. § 15 404.1527(d)(2)(i)-(ii). 16 On the other hand, if the ALJ determines the treating doctor’s opinion is 17 contradicted by another doctor, the ALJ still cannot reject the treating doctor’s 18 opinion unless the ALJ provides “specific and legitimate reasons” supported by 19 substantial evidence in the record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 20 1983). Lastly, “[w]here the treating doctor’s opinion is not contradicted by 21 another doctor, it may be rejected only for ‘clear and convincing’ reasons 22 supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 23 830-31 (9th Cir. 1995) (quoting Murray, 722 F.2d at 502). 24 In this case, the ALJ rejected Dr. Gutierrez’s assessment because he found 25 her assessment was “non-specific” and did “not rise to the level of a medical 26 opinion.” AR at 21, 23. Other than finding Dr. Gutierrez’s opinion incomplete 27 and lacking in detail, the ALJ did not cite any reasons for failing to give controlling 28 weight to Plaintiff’s primary treating physician. The ALJ did not refer to other 11 1 treating physicians whose opinions contradicted Dr. Gutierrez’s, nor did he cite to 2 any objective medical evidence that contradicted Dr. Gutierrez’s findings. In fact, 3 looking at the record, it appears that there is objective medical evidence that is both 4 consistent and supportive of Dr. Gutierrez’s December 2013 assessment. For 5 example, Dr. Gamal’s diagnosis of peripheral neuropathy in the lower extremities 6 and subsequent prescription of Neurontin supports Dr. Gutierrez’s conclusion that 7 Plaintiff was suffering from leg pain. Id. at 620-21. Furthermore, Plaintiff’s history 8 of eye surgeries; Dr. Sean Adrean’s conclusion Plaintiff has a history of 9 “proliferative diabetic retinopathy” and “clinically significant macular edema;” 10 and Plaintiff’s own testimony that he has suffered permanent damage to his eyes 11 supports the conclusion that Plaintiff was suffering from vision loss and DM 12 retinopathy at the time Dr. Gutierrez made her assessment in December 2013. Id. 13 at 38, 355, 358, 428-29. Moreover, to the extent Dr. Gutierrez’s assessment was not well-supported 14 15 by the medical evidence, the ALJ cannot simply disregard a treating physician’s 16 opinion. See S.S.R. 96–2p; Orn, 495 F.3d at 632. Rather, as discussed above, the 17 ALJ had a duty to consider “specified factors” – like the length of the treatment 18 relationship, the frequency of examination, and the nature and extent of the 19 treatment relationship between the patient and the treating physician – in 20 determining the weight” to give to the physician’s conclusion. Orn, 495 F.3d at 21 631. 22 In this case, as discussed above, the record establishes that Dr. Gutierrez has 23 been Plaintiff’s treating physician for, at least two years, during which Dr. 24 Gutierrez personally examined and treated Plaintiff on six separate occasions. AR 25 at 450, 455, 463, 470, 473, 484. Furthermore, the record provides that Dr. 26 Gutierrez is, in fact, Plaintiff’s primary care physician, as well as the physician 27 responsible for referring Plaintiff to various specialists. Id. at 440, 547. Thus, 28 looking at the record as a whole, it is clear that Dr. Gutierrez had a lengthy history 12 1 and familiarity with Plaintiff’s health problems. As a result, her medical opinion 2 should have been entitled to greater weight than the ALJ assigned. 3 Lastly, even assuming Dr. Gutierrez’s assessment lacked the necessary 4 information for the ALJ to make a definitive conclusion, this reason alone does not 5 provide the ALJ grounds to completely disregard a treating physician’s assessment. 6 Rather, pursuant to an ALJ’s duty to develop the record, the ALJ should have 7 sought additional evidence or clarification before coming to any conclusions. 20 8 C.F.R. §§ 404.1512(e); 416.912(e); Gomez, 2015 WL 4617401, at *9. 9 Consequently, because the ALJ rejected Dr. Gutierrez’s assessment without 10 seeking additional information from her, he failed to fulfill his duty to develop the 11 record. 12 13 14 (2) THE ALJ ERRONEOUSLY RELIED ON PLAINTIFF’S PURPORTEDLY CONSERVATIVE TREATMENT The ALJ found Plaintiff had a “limited history of treatment for his 15 impairments,” which “suggests that he is not as limited as he alleges.” AR at 23. 16 While the ALJ acknowledged that Plaintiff was prescribed medication for his 17 impairments, he notes “the record indicates no evidence of the claimant 18 undergoing physical therapy, pain relief injections, or surgical intervention to treat 19 any of his impairments.” Id. The ALJ further noted “the treatment record largely 20 reflects standard medical treatment for common, ordinary medical problems.” Id. 21 Consequently, “[t]he treating doctors did not see fit to refer [Plaintiff] to a 22 specialist and the diagnostic studies obtained were unremarkable.” Id. 23 However, in regards to the shooting and burning pain in Plaintiff’s lower legs 24 and feet, the evidence shows that one of Plaintiff’s treating physicians did actually 25 refer Plaintiff to a specialist. See id. at 619-21. Dr. Ole Opgaard, Plaintiff’s 26 endocrinologist, referred Plaintiff to Dr. Reda Gamal, a neurologist. Id. Dr. Gamal 27 noted that Plaintiff complained of “numbness [and] tingling” in his “hands [and] 28 13 1 legs,” and “leg cramps” that “tends to move” between his legs and feet 2 “frequently while asleep.” Id. at 619. 3 Due to Plaintiff’s complaints, Dr. Gamal found it necessary to perform a 4 nerve conduction and needle electromyography study of Plaintiff’s right and left 5 upper and lower extremities and cervical and lumbar paraspinal muscles. Id. at 6 620. Following the study, Dr. Gamal determined there was evidence of “severe 7 mixed motor and sensory neuropathy of the upper and lower extremities.” Id. 8 Consequently, Dr. Gamal prescribed 300 mg of Neurontin and indicated that she 9 would reevaluate Plaintiff in four to six weeks to increase the dose of medication as 10 necessary. Id. at 619, 621. Thus, Plaintiff was not limited to conservative 11 treatment for the cramping in his lower extremities, and the objective medical 12 evidence provides support for Plaintiff’s subjective symptoms. 13 Additionally, in regards to Plaintiff’s vision, the evidence indicates Plaintiff 14 has a long history of vision problems due to his diabetes and has received extensive 15 treatment. Among other things, Plaintiff received three different surgeries over the 16 course of one year to address his vision problems. Id. at 355, 358, 579. While the 17 ALJ correctly noted that “since August 2013, the record includes no evidence of 18 further intervention to treat [Plaintiff’s] eye-related impairments . . . and the record 19 includes no evidence to show worsening of claimant’s vision since December 20 2012,” the rejection of Plaintiff’s testimony regarding his visual impairments due 21 to a purported lack of objective evidence is not supported by record. Id. at 17, 19. 22 Rather, the overall diagnostic record, including Plaintiff’s continued treatment for 23 his diabetes and lengthy and extensive medical history of “proliferative diabetic 24 retinopathy” and “significant macular edema,” supported Plaintiff’s testimony 25 regarding his visual impairments. Id. at 428-29. 26 Based upon all of these reasons, the ALJ failed to properly consider the 27 overall diagnostic record in rejecting Plaintiff’s testimony regarding the intensity, 28 persistence, and liming effects of his symptoms. 14 1 C. THE ALJ IMPROPERLY RELIED ON PLAINTIFF’S DAILY 2 ACTIVITIES 3 The ALJ also found Plaintiff’s “activities of daily living are also not 4 consistent with the alleged degree of impairment.” Id. at 23. The ALJ noted 5 Plaintiff “does laundry, grocery shopping, and cooking with a microwave,” and 6 that he even “rode his bike to an appointment” back in March 2013. Id. The ALJ 7 concluded these activities all “suggest that [Plaintiff] has a better physical capacity 8 than he stated in the record” and more specifically, that “he has the ability to 9 perform work.” Id. 10 An ALJ must make “‘specific findings relating to [the daily] activities’ and 11 their transferability to conclude that a claimant’s daily activities warrant an adverse 12 credibility determination.” Orn, 495 F.3d at 639 (brackets in original) (quoting 13 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). “This court has repeatedly 14 asserted that the mere fact that a plaintiff has carried on certain daily activities, 15 such as grocery shopping, driving a car, or limited walking for exercise, does not in 16 any way detract from [plaintiff’s] credibility as to [plaintiff’s] overall disability. 17 One does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan 18 v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 19 597, 603 (9th Cir. 1989)); see also Reddick, 157 F.3d at 722 (“[D]isability claimants 20 should not be penalized for attempting to lead normal lives in the face of their 21 limitations.”). 22 Here, although the ALJ found Plaintiff’s daily activities undermined his 23 disability claims, the ALJ failed to explain how such activities contradict or 24 undermine Plaintiff’s allegations of disabling functional limitations. See Reddick, 25 157 F.3d at 722 (explaining only if a claimant’s level of activity is inconsistent with 26 his or her alleged limitations will these activities bear on credibility). Plaintiff 27 testified that he “generally” does his own laundry and that he “generally” goes 28 grocery shopping. AR at 40. Plaintiff stated that he does not usually cook for 15 1 himself, but rather microwaves his food or eats out when he can. Id. at 39. 2 Plaintiff’s ability to “generally” complete basic chores around his house is not 3 significantly inconsistent with his claims of fatigue and pain to support a conclusion 4 that Plaintiff’s description of his limitations were exaggerated. Furthermore, there 5 is nothing in Plaintiff’s described daily activities that indicates such chores either 6 “comprised a substantial portion of [Plaintiff’s] day, or were transferrable to a 7 work environment.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014); see 8 also Smolen, 80 F.3d at 1284 n.7 (recognizing that “many home activities may not 9 be easily transferrable to a work environment”). 10 Perhaps most significantly, the ALJ failed to give any consideration to 11 Plaintiff’s testimony regarding the days he is unable to get out of bed because of the 12 fatigue and pain he experiences. See AR at 41. While Plaintiff testified he 13 occasionally socializes by visiting with his family or going to Starbucks, he stated 14 these activities are contingent upon him having the energy to get out of bed. Id. at 15 40. Because walking can increase the pain, Plaintiff testified that on the days he is 16 unable to leave his bed, he will often take measures to avoid moving by, for 17 instance, keeping “a jug next to the bed so [he doesn’t] have to get up” to go to the 18 bathroom. Id. Absent clear and convincing evidence not to trust Plaintiff’s 19 testimony, there is no reason for the ALJ to discount this portion of Plaintiff’s daily 20 activities. An “ALJ may not cherry-pick evidence to support the conclusion that a 21 claimant is not disabled, but must consider the evidence as a whole in making a 22 reasoned disability determination.” Williams v. Colvin, No. EDCV 14-2146-PLA, 23 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (citing Holohan v. Massanari, 24 246 F.3d 1195, 1207 (9th Cir. 2001)). 25 The ALJ’s conclusion that “the [Plaintiff’s] activities are also not consistent 26 with the alleged degree of impairment” is not supported by substantial evidence. 27 AR at 23. Thus, the ALJ’s reliance on Plaintiff’s daily activities was an improper 28 16 1 basis for rejecting Plaintiff’s testimony regarding the intensity, persistence, and 2 liming effects of his symptoms. 3 D. THE ALJ IMPROPERLY RELIED UPON HIS OWN PERSONAL 4 OBSERVATIONS OF PLAINTIFF AT THE HEARING 5 Finally, the ALJ found Plaintiff “did not show any difficulty in focusing or 6 concentrating when providing answers to questions or in volunteering information, 7 at the hearing,” and thus, concluded that Plaintiff’s behavior further indicated 8 Plaintiff was “not as limited as he alleges.” Id. at 23. 9 Courts have often condemned reliance on what is known as “sit and squirm” 10 jurisprudence due to a concern that “the ALJ, who is not a medical expert, may 11 substitute his or her own lay judgment in the place of a medical diagnosis.” Tobias 12 v. Colvin, No. EDCV 13-1703-E, 2014 WL 2448916, at *5 (C.D. Cal. May 30, 2014) 13 (“The reported fact that Plaintiff appeared to the ALJ to be able to concentrate and 14 respond timely to questioning at the hearing is no substitute for the objective tests 15 . . . performed.”). On the other hand, although an ALJ cannot make any medical 16 diagnosis based on his lay judgment of Plaintiff, the ALJ can assess the claimant’s 17 credibility, by using “ordinary techniques of credibility evaluation,” such as 18 considering the claimant’s reputation for truthfulness and any inconsistent 19 statements in his testimony. Fair, 885 F.2d at 604 n.5; Tonapetyan, 242 F.3d at 20 1148. However, in doing so, the ALJ must still give specific, convincing reasons if 21 he chooses to reject the claimant’s subjective statements. Fair, 885 F.2d at 602. 22 Here, in light of the objective evidence in the record supporting Plaintiff’s 23 claims of pain and fatigue, the ALJ’s lay observations that Plaintiff failed to exhibit 24 any outward symptoms during the hearing is an insufficient basis to find Plaintiff 25 not credible. Furthermore, because the ALJ did not find any evidence of 26 malingering, did not make any conclusions about Plaintiff’s reputation for 27 truthfulness, and did not cite any specific inconsistencies within Plaintiff’s 28 testimony, there was no reason for the ALJ to conclude Plaintiff’s testimony was 17 1 untrustworthy. Thus, the ALJ’s reliance on Plaintiff’s behavior at the hearing was 2 an improper basis for rejecting Plaintiff’s testimony regarding the intensity, 3 persistence, and liming effects of his symptoms. 4 IX. 5 RELIEF 6 A. APPLICABLE LAW “When an ALJ’s denial of benefits is not supported by the record, the 7 8 proper course, except in rare circumstances, is to remand to the agency for 9 additional investigation or explanation.” Hill, 698 F.3d at 1162 (citation omitted). 10 “We may exercise our discretion and direct an award of benefits where no useful 11 purpose would be served by further administrative proceedings and the record has 12 been thoroughly developed.” Id. (citation omitted). “Remand for further 13 proceedings is appropriate where there are outstanding issues that must be resolved 14 before a determination can be made, and it is not clear from the record that the ALJ 15 would be required to find the claimant disabled if all the evidence were properly 16 evaluated.” Id. (citations omitted); see also Reddick, 157 F.3d at 729 (“We do not 17 remand this case for further proceedings because it is clear from the administrative 18 record that Claimant is entitled to benefits.”). 19 B. ANALYSIS 20 In this case, the record has not been fully developed. The ALJ must reassess 21 Plaintiff’s credibility regarding the intensity, persistence, and limiting effects of his 22 symptoms and their impact on the RFC determination. Accordingly, remand for 23 further proceedings is appropriate. 24 /// 25 /// 26 /// 27 /// 28 /// 18 1 X. 2 CONCLUSION 3 For the foregoing reasons, IT IS ORDERED that judgment be entered 4 REVERSING the decision of the Commissioner and REMANDING this action for 5 further proceedings consistent with this Order. IT IS FURTHER ORDERED that 6 the Clerk of the Court serve copies of this Order and the Judgment on counsel for 7 both parties. 8 9 10 11 12 Dated: October 13, 2016 HONORABLE KENLY KIYA KATO United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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