James Troy Williams v. Carolyn W. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION

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12 JAMES TROY WILLIAMS,
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Plaintiff,

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v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social
Security,
Defendant.

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Case No. SA CV 16-02141-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

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20

PROCEEDINGS

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22

On December 1, 2016, pro se Plaintiff, James Troy Williams, filed

23 a Complaint seeking review of the denial of his application for
24 Disability Insurance Benefits. (Docket Entry No. 1). The parties have
25
consented to proceed before the undersigned United States Magistrate

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28

Judge.

(Docket Entry Nos. 8-9).

On April 14, 2017, Defendant filed an

1

Nancy A. Berryhill is now the Acting Commissioner of the
Social Security Administration and is substituted in for Acting
Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g).
1

1 Answer along with the Administrative Record (“AR”). (Docket Entry Nos.
2 15-16).
3

On July 13, 2017, Plaintiff filed a “Memorandum of Points and

Authorities in Support of the Plaintiff’s Motion for Summary Judgment”

4

(“Plaintiff’s Brief”).

(Docket Entry No. 20).

On August 14, 2017,

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6

Defendant

filed

a

“Memorandum

7 (“Defendant’s Brief”).

in

Support

of

(Docket Entry No. 22).

8 Plaintiff filed a Reply Brief.

Defendant’s

Answer”

On August 31, 2017,

(Docket Entry No. 23).

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10

The Court has taken this matter under submission without oral

11 argument.
12

See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social

Security Case,” filed December 6, 2016 (Docket Entry No. 6).

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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17

On June 17, 2011, Plaintiff, formerly employed as an interior

18 designer for homes and as a sales representative for a ceramic tiles
19
company

(see

AR

53,

104,

322,

366-77),

filed

an

application

for

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Disability Insurance Benefits, alleging an inability to work because of
his disabling condition since October 1, 2009.

(AR 298-99).

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24

On January 31, 2013, Administrative Law Judge Keith Dietterle (“ALJ

25 Dietterle”), heard testimony from Plaintiff (who was represented by
26 counsel) and vocational expert Alan Boroskin. (See AR 50-69). On March
27 5, 2013, ALJ Dietterle issued a decision denying Plaintiff’s
28

application.

(See AR 133-41).

After determining that Plaintiff had
2

1 severe impairments –- “sleep apnea, hypothyroidism, obesity, and
2 affective disorder” (AR 135) –- but did not have an impairment or
3
combination of impairments that met or medically equaled the severity of

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one of the Listed Impairments (AR 135-36), ALJ Dietterle found that

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Plaintiff had the residual functional capacity (“RFC”)2 to perform medium

7 work with the following limitations: frequent postural functions; no
8 exposure to unprotected heights and dangerous or fast-moving machinery;
9 and work involving only simple, routine tasks.

(AR 136-39).

ALJ

10 Dietterle then determined that Plaintiff was not able to perform any
11 past relevant work (AR 139), but that Plaintiff could perform jobs
12

existing in significant numbers in the national economy, and was

13
therefore not disabled within the meaning of the Social Security Act.

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(AR 139-40).

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17

Plaintiff requested that the Appeals Council review ALJ Dietterle’s

18 decision.

(See AR 216-17).

On August 25, 2014, the Appeals Council

19 vacated ALJ Dietterle’s decision and remanded the matter in order for
20 the Administrative Law Judge to do the following: (1) “Obtain additional
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evidence concerning the clamant’s musculoskeletal impairment in order to

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complete the administrate record in accordance with the regulatory
standards regarding consultative examinations and existing medical

25 evidence”; (2) “Further, if necessary, obtain evidence from a medical
26 expert to clarify the nature and severity of the claimant’s impairment”;
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2

A Residual Functional Capacity is what a claimant can still do
despite existing exertional and nonexertional limitations.
See 20
C.F.R. § 404.1545(a)(1).
3

1 (3) “Further evaluate the claimant’s musculoskeletal disorder with
2 reference to the pertinent evidence of record, including the claimant’s
3
treatment history”; and (4) “If warranted by the expanded record, obtain

4

supplemental evidence from a vocational expert to clarify the effect of

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the assessed limitations on the claimant’s occupational base[.]” (See AR

7 149-50).
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9

On July 21, 2015, another Administrative Law Judge (“ALJ”), Joan

10 Ho, heard testimony from Plaintiff (who was represented by ocunsel),
11 medical expert Ronald Kendrick and vocational expert Jeanine Metildi.
12

(See AR 72-09).

On Sepember 4, 2015, the ALJ issued a decision denying

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Plaintiff’s application.

(See AR 22-37).

After determining that

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Plaintiff had severe impairments –- ”obesity; degenerative disc disease

16 of the cervical spine; cervical spondylosis; degenerative disc disease
17 of the lumbar spine; and major depressive disorder” (AR 25-26)3 –- but
18 did not have an impairment or combination of impairments that met or
19 medically equaled the severity of one of the Listed Impairments (AR 2620 27), the ALJ found that Plaintiff had the RFC to perform a range of
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sedentary work4 with the following limitations: can lift and/or carry up

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3

The

ALJ

found

that

Plaintiff’s hypothyroidism, low

24 testosterone, sleep apnea and upset stomach to be were nonsevere
impairments, and that Plaintiff’s fibromyalgia and bipolar disorder were
(AR 25).

25 not medically determinable impairments.
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“Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties.
Jobs are sedentary if
walking and standing are required occasionally and other sedentary
(continued...)
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1 to 15 pounds occasionally and 10 pounds frequently; can stand and/or
2 walk 4 hours and sit for 6 hours during an 8-hour workday with normal
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breaks; cannot climb ramps, stairs, ladders, ropes and scaffolding; can

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bend, stoop, kneel, crouch and crawl occasionally; can reach in all

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directions, including overhead, frequently; can use hands and fingers

7 bilaterally frequently; cannot be exposed to workplace hazards such as
8 dangerous moving machinery and unprotected heights; limited to simple,
9 routine

and

repetitive

tasks,

but

can

sustain

attention

and

10 concentration skills sufficient to carry out work-like tasks with
11 reasonable pace and persistence; and can interact with co-workers,
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supervisors and the general public occasionally.

(AR 27-34).

The ALJ

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then determined that Plaintiff was not able to perform any past relevant

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work

(AR

35),

but

that

Plaintiff

could

perform

jobs

existing

in

16 significant numbers in the national economy and was therefore not
17 disabled within the meaning of the Social Security Act.

(AR 35-36).

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Plaintiff requested that the Appeals Council review the ALJ’s

20 decision.
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(See AR 17).

(See AR 1-5).

The request was denied on October 14, 2016.

The ALJ’s decision then became the final decision of the

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Commissioner, allowing this Court to review the decision. See 42 U.S.C.
§§ 405(g), 1383(c).

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26 //
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(...continued)
criteria are met.” 20 C.F.R. §§ 404.1567(a).
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PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ failed to properly: (1) assess

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Plaintiff’s credibility; (2) assess certain medical medical evidence
(including the opinion of one of Plaintiff’s treating physicians); (3)

7 evaluate the medical expert’s testimony or consider the written
8 objection to the medical expert’s testimony; (4) assess the opinions of
9 several of Plaintiff’s treating physicians; (5) determine Plaintiff’s
10 RFC; and (6) consider Plaintiff’s mental impairments. (See Plaintiff’s
11 Brief at 2-23; Reply Brief at 2-7).
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DISCUSSION

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After consideration of the record as a whole, the Court finds that

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17 Plaintiff’s first claim of error warrants a remand for further
18 consideration.
Since the Court is remanding the matter based on
19 Plaintiff’s first claim of error, the Court will not address Plaintiff’s
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second through sixth claims of error.

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A.

The ALJ Did Not Properly Assess Plaintiff’s Credibility

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Plaintiff asserts that the ALJ erred in finding that Plaintiff’s

26 testimony about his pain was not credible. (See Plaintiff’s Brief at 227
9; Reply Brief at 2-4).

Defendant asserts that the ALJ properly

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1 considered Plaintiff’s testimony and found Plaintiff not fully credible.
2 (See Joint Stip. at 14-17).
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Plaintiff made the following statements in a “Function Report -

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Adult” dated July 28, 2011 (see AR 335-42):

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He lives alone in an apartment, but he is going to move

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in with a friend or family in September 2011 because he can no

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longer afford it.

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pets (he had to give away a dog because he was unable to take

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He does not take care of anyone else or

care of the dog). (See AR 335-36, 342).

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As a result of his impairments, he no longer is able to

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swim, dance, take long walks or hikes, work out, work, or

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engage in social functions. His impairments affect his sleep;

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he has difficulty falling asleep, he has bad nightmares, he

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does not sleep well, and he feels paralyzed when he wakes up.

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His impairments affect his abilities to bathe (he can only

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shower, and bathing makes him fell light-headed), to care for

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his hair (his hair has become oily and itchy), and to shave

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(shaving causes itching and a burning sensation). Although he

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does not need special reminders to take care of personal needs

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and grooming, he often puts them off until later in order to

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sleep more or feel better (which does not happen).

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He needs

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special reminders to take medicine (he forgets whether or not

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he has already taken medicine).

(See AR 336-37).

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He prepares his own meals, simple things likes sandwiches

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and frozen dinners (i.e., spaghetti, soup, rice and beans).

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Once a day he makes semi-prepared hot food (which takes 15 to

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20 minutes), and the rest of his meals must be ready-made.

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His impairments have made him cook less because of his low

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energy level.

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(5 minutes), laundry (5 minutes), and vaccuuming once in a

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His househould chores are hand-washing dishes

while (10 to 15 minutes).

He cannot do outdoor work because

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of the heat and physical exertion.

He goes outside when

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necessary, to get mail, go to doctors’ appointments, and get

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groceries, driving a car (“[q]uick trips in my immediate

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vicinity”). He shops in stores only for groceries, every week

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or two (30 to 40 minutes).

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change, handle a saving account, and use a checkbook or money

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orders.

He is able to pay bills, count

(See AR 337-39).

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He no longer does his hobbies and interests, namely,

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swimming, biking, hiking, long walks and long car trips,

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because he is short of breath, exhausted, has muscle fatigue

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and is overwhelmed.

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the phone once a day, and getting together with a friend once

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a week.

He spends time with others, talking on

He does not go to any places on a regular basis, and

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he does not feel well enough to attend social functions.

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has problems getting along with others because he does not

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feel like his “old self” and is irritable, less patient,

4

He

depressed, anxious and nervous. (See AR 339-40).

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His impairments affect his lifting, squatting, bending,

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standing,

reaching,

walking,

sitting,

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kneeling,

climbing,, and getting along with others.

stair-

His joints are

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tight and sore all the time, he feels shortness of breath and

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light-headed, he has hot flashes and sweats profusely, and his

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strength “can give-out depending on [his] emotions.”

He can

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walk for 10 minutes before he has to rest, and then must rest

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for at least 3 minutes before he can resume walking.

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cannot

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conversations and television shows.

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well, and he believes he can follow follow written and spoken

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instructions well.

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figures, and he has never been fired or laid off from a job

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finish

what

he

starts;

he

falls

asleep

He

during

He can pay attention

He usually gets along fine with authority

because of problems getting along with other people.

He does

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not handle stress well (ruminating thoughts make it more

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difficult for him to sleep).

He does not handle changes in

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routine well. (See AR 340-41).

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27

Plaintiff testified at the January 31, 2013 administrative hearing

28 as follows (see AR 52-65):
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1

He has a Bachelor’s degree from the Interior Designers

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Institute.

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his parents about a year ago (for financial reasons). He last

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He lived by himself until he moved back in with

worked in July 2008 as an interior designer kitchen and

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project designer, which consisted of 1/3 walking, 1/3 sitting

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and 1/3 standing and required him to lift and carry 100 pounds

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(large tile and flooring samples).

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all of his jobs had been in interior design and had roughly

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the same walking, sitting, standing, lifting requirements. He

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is 6’4 1/2” tall and weighs 330 pounds (his normal weight is

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During the past 15 years

220 pounds; he gained 80 pounds during a 9-month period in

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2009 as a result of hypothyroidism).

He has difficulty

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sleeping and has sleep apnea (he uses a CPAP which helps but

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is not perfect).

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problem, he goes to bed between 3 a.m. and 5 a.m. (before he

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falls asleep he just lies in bed for 2 to 3 hours; he has

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tried activities like reading and watching television, but

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sometimes they just overstimulate him), and he is tired in the

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As a result of his thyroid (metabolism)

morning because his mind is racing.

He sees Dr. Molina for

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his hypothyroidism every two weeks or at least once a month,

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and he takes a synthetic form of Levothyroxine (and has tried

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a natural remedy, Armour, which apparently did not work).

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has problems with chronic fatigue, and naps for about an hour

27

or two during the day (he sometimes has to pull his car over

28

to the side of the ride to take a nap).
10

(See AR 52-57).

He

1

He has severe depression; he becomes extremly withdrawn

2

and has suicidal ideations.

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depression. He does not have hallucinations. (See AR 59-61).

He sees a psychiatrist for his

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6

He has pain in his neck and has headaches, and sees Dr.

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Demner for treatment.

The pain travels from his neck to the

8

base of his spine.

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every three months on average.

He has had to go to the emergency room

10

least 4 times a week since 2003.

11

and muscle relaxers.

12

He has used a TENS unit at
He also has used heat, ice

For pain management, he has received

trigger point injections and epidurals in his upper and lower

13
thoracic.

The past 2 months he has had two epidurals, which

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15

provided

him

relief

for

about

a

week.

Dr.

Demner

has

16

recommended a spinal fusion joining the neck and the cervical

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spine.

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to go to physical therapy for 6 months to one year.

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62-64).

He is considering it, but his insurance requires him
(See AR

20
21

He does not have any difficulty with dressing or bathing.

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23

He has difficulty putting on his shoes, but he usually wears

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slip-on shoes. He does minimal household chores -- making his

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bed, cleaning the kitchen countertop, laundry, things that do

26

not require much bending.

27

minutes (he begins to feel drowsy).

28

(depending on its comfort) for about 2 hours. He can walk for

He can drive for a maximum of 20

11

He can sit in a chair

1

2 blocks.

2

75 pounds if he is standing upright (i.e., a box on a

3

counter); he cannot lift that weight if it is on the ground

4

He does not use any assistive device.

He can lift

and he has to bend (it would cause him pain or to spasm

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6

later).

(See AR 57-59).

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8
9

His circle of friends has been reduced to one or two
people.

He goes out with his friends about once every three

10

months, and goes out to eat about once a month.

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have any hobbies, and does not belong to any clubs or social

12

organizations.

He does not

He reads the news on the computer every day

13
(about 30 minutes).

(See AR 60-61).

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His energy level and sleepiness would keep him from being

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able to do a simple job on a full-time basis.

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has good days, but more often has bad days.

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cannot get out of bed and get himself going.

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down because his back hurts or because his pain and depression

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are overwhelming.

He sometimes

2 times a week he
He just lies

(See AR 64-65).

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24

Plaintiff testified at the July 21, 2015 administrative hearing as

25 follows (see AR 75-76, 84-102):
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27
28

He is single, lives with his parents in a house, is 6'4"
tall, and weighs 330 pounds.

He drives three to four times a
12

1

week, usually to the grocery store.

2

the hearing.

His parents drove him to

(See AR 76).

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4

He stopped working because he was laid off.

When asked

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6

if he would have continued to work had he not been laid off,

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he responded, “My health was deteriorating and I was going to

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many, many doctors at the time, so when I was laid off I

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thought oh, great, now I can concentrate on my health.

At

10

that time, he was having problems with primarily his back

11

(cervical spine and lumbar spine), and he was going to (with

12

insurance)

physical

therapy

twice

a

week

and

to

the

13
chiropractor once a week.

From July 2008 to the end of 2013,

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15

his back problems became much worse –- he got severe spasms,

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shooting nerving pain (from his lower back down to his feet)

17

that would cause him to go off-balance and fall, and burning

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sensations in his feet.

From July 2008 to the end of 2013,

19

his

worse

20

compressed, and the pain became a shooting, radiating pain

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neck

pain

became

--

the

over his head and way down his back.

nerve

became

more

His neck pain affects

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23

his ability to move his neck side to side or tilting.

Many

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neurosurgeons have recommended surgery on his neck, and the

25

plan is to proceed with a neck fusion (but a neurologist still

26

needs to say how many neck segments need to be fused).

27

to the end of 2013, he had hypothyroidism for about a year and

28

a half.

Prior

His hypothyroidism levels have been stable since
13

1

2010, but he still has various symptoms, such as voice

2

hoarseness, skin problems, heavy rosacea (which he treats with

3

ointments), and constipation.

4

had fibromyalgia which has been an all-over body ache causing

5

Prior to the end of 2013, he

pain between a level 6 to a level 8. (See AR 84-90).

6
7
Prior to the end of 2013, he could stand for 3 minutes

8
9

before he started feeling pain, and after standing for about

10

10 minutes he needed to sit down or change his position.

11

he can only stand for about 5 minutes before spasms begin and

12

he has to change position.

13

if he sits for too long.

14

Now

He also needs to change position

He has problems with concentration;

noises and lights easily break his attention span.

(See AR

15
16

90-92).

17
At the beginning of his hypothyroidism, his psychiatric

18
19

care

20

depressants; he saw Dr. Batagleno at least every 2 weeks for

21

about six months.

22

was

well-managed

with

mood

stabilizers

and

anti-

However, prior to the end of 2013, he had

severe depression, severe anxiety and irrational fears -- his

23
anxiety

became

uncontrollable,

the

combination

of

pill

24
25

cocktails he was taking did not continue to work (different

26

doctors changed his medications), he would talk himself out of

27

doing things like getting out of the house, and he ultimately

28
14

1

isolated himself.

His mental health issues have stabilized.

2

(See AR 92-93, 99-100).

3
4
5

With respect to daily activities from July 2008 to the
end of 2013, he stayed home laying flat on his back an average

6
7
8
9

of 4 to 5 hours a day, watching television, taking online
courses, talking to friends.

He also would have to lie down

if he had sit and/or stood for an hour and a half.

He was

10

able to do laundry and dishes until 2011 or 2012; since he

11

cannot bend lower than his waist, the only thing he now is

12

able to do is clean his own dish (meaning, wash it, put it on

13

the counter, and a family member puts it in the dishwasher).

14

He took one or two online courses (i.e., graphic design, real

15
16

estate, art history) every semester; he took the courses

17

because they forced him to focus and engage in something, and

18

he did okay (meaning, he got C grades).

19

some classes.

He also went in for

(See AR 93-95, 101-02).

20
21
22

Although he used to use hot and cold packs for pain
relief, he now uses only cold packs on his lower back and neck

23
because of his skin issues.

Prior to the end of 2013, he took

24
25

Flexeril and Naprosyn and then started taking Percocet in

26

November 2013.

With the Flexeril and Naprosyn he was able to

27

get out of bed and perform basic functions. In November 2012,

28

he reported to his physican, Dr. Demner, that he had an
15

1

average pain level of 5 to 6 (but he claims that he actually

2

had an average pain level of 8 but that Dr. Demner tried to

3

minimize his condition).

4

relaxers.

5

He now is taking Norco and muscle

He has had multiple trigger–point epidurals on

both his cervical and lumbar spines; the relief lasted for

6
7

about two weeks.

(See AR 95-96).

8
9

After

briefly

discussing

Plaintiff’s

testimony

at

the

two

10 administrative hearing as well as a consultative examiner’s notation
11 (see AR 28)5, the ALJ addressed Plaintiff’s credibility as follows:
12
13
14

After

careful

consideration

of

the

evidence,

the

undersigned finds that the claimant’s medically determinable

15
16

impairments could reasonably be expected to cause some of his

17

alleged symptoms, but that his statements concerning the

18

intensity, persistence and limiting effects of these symptoms

19

are not entirely credible for the reasons explained in this

20

decision.

21
22

In

finding

the

claimant’s

allegations

not

entirely

23
credible, the undersigned notes they are not fully supported

24
25

by or consistent with the medical evidence of record.

26
27
28

5

With respect to the
wrote, “The undersigned also
examiner he spends 90 percent
to eat and go to the bathroom

consultative examiner’s notation, the ALJ
notes the claimant told a consultative
of his day lying in bed, getting up only
(Exhibit 10-F, p. 5).”
16

1 (AR 28).
2
3

The ALJ proceeded to discuss the medical evidence relating to

4 Plaintiff’s physical impairments. (See AR 28-29).
5

The ALJ then

addressed Plaintiff’s credibility regarding his mental impairments

6
7
8

as follows: “The undersigned also notes the evidence does not fully
support his allegations regarding his mental health issues.”

(AR

9 29). The ALJ proceeded to discuss the medical evidence relating to
10 Plaintiff’s mental health impairments.

(See AR 30).

11
12

The ALJ continued to address Plaintiff’s credibility as follows:

13
14

In

finding

the

claimant’s

allegations

not

entirely

15
16

credible, the undersigned also notes the claimant has made some

17

inconsistent

18

suggesting he was not as limited as he has alleged.

19

stated, for example, that he does not have any difficulty

20

taking care of his personal needs, is able to drive, sit for

21

two hours at a time, and lift up to 75 pounds as long as he

22

statements

does not have to bend.

and

has

provided

some

information
He has

During the July 21, 2015 hearing, the

23
claimant testified he drives three or four times a week to the

24
25

grocery store. He also acknowledged he stopped working because

26

he was laid off, not because of his medical problems.

He also

27

testified

on

28

computer, does chores such as washing his dishes, and has taken

he

goes

out

with

17

friends,

spends

time

the

1

and

2

claimant’s

3

necessarily

4

passed

an

online

ability

class

to

every

semester.

perform
he

establish

these

capable

was

While

the

does

not

obtaining

and

activities
of

maintaining employment through his date last insured, his

5
6

ability to perform these activities does indicate he was not as

7

limited as he has alleged and that he was not, in fact,

8

spending 90 percent of his time lying in bed.

9
10 (AR 30).
11
12

A

claimant

initially

must

produce

objective

medical

evidence

13
establishing a medical impairment reasonably likely to be the cause of

14
15

the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.

16 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

Once a

17 claimant produces objective medical evidence of an underlying impairment
18 that could reasonably be expected to produce the pain or other symptoms
19 alleged, and there is no evidence of malingering, the ALJ may reject the
20 claimant’s testimony regarding the severity of his or her pain and
21
symptoms only by articulating specific, clear and convincing reasons for

22
23
24

doing

so.

Brown-Hunter

v.

Colvin,

798

F.3d

749,

755

(9th

Cir.

2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

25 2007)); see also Smolen, supra; Reddick v. Chater, 157 F.3d 715, 722
26 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th
27 Cir. 1997). Because the ALJ does not cite to any evidence in the record
28
18

1 of malingering, the “clear and convincing” standard stated above
2 applies.
3
4

Here, the ALJ failed to provide clear and convincing reasons for

5
6

finding that Plaintiff’s testimony about the intensity, persistence and

6
7 limiting effects of his symptoms was not entirely credible.

8
9

First, the ALJ failed to “specifically identify ‘what testimony is

10 not credible and what evidence undermines [Plaintiff’s] complaints.’”
11 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v.
12

Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, supra, 80

13
F.3d at 1284 (“The ALJ must state specifically what symptom testimony is

14
15

not credible and what facts in the record lead to that conclusion”).

16
17

Second, the ALJ’s determination that Plaintiff’s testimony about

18 his physical impairments and mental impairments was not fully supported
19 by the medical evidence was an insufficient reason for finding Plaintiff
20 less than fully credible with respect to his testimony about the
21

severity of her physical and mental impairments.

Once a claimant

22
23

demonstrates medical evidence of an underlying impairment, “an ALJ ‘may

24
6

The Court will not consider reasons for finding Plaintiff not

25 entirely credible (see Defendant’s Brief at 2-5) that were not given by
the ALJ in the Decision. See Connett v. Barnhart, 340 F.3d 871, 874
26 (9th Cir. 2003)(“We are constrained to review the reasons the ALJ
asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), Pinto

27 v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); and Garrison v.
Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons
28 provided by the ALJ in the disability determination and may not affirm
the ALJ on a ground upon which he did not rely.”).
19

1 not disregard [a claimant’s testimony] solely because it is not
2 substantiated affirmatively by objective medical evidence.’” Trevizo v.
3

Berryhill, 862 F.3d 987, 1001 (9th Cir. 2017)(quoting Robbins v. Soc.

4

Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)).

5
6
7

Third, the ALJ’s partial discrediting of Plaintiff’s testimony

8 based on his ability to perform certain daily activities, such as taking
9 care of his personal needs, washing his dishes, driving, driving three
10 or four times a week to the grocery store, sitting for two hours at a
11 time, lifting up to 75 pounds if he does not have to bend, going out
12

with friends, spending time on the computer, and taking and passing an

13
online class every semester, was not a clear and convincing reason. See

14
15

Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“[T]he mere

16 fact that a plaintiff has carried on certain daily activities . . . does
17 not in any way detract from her credibility as to her overall
18 disability. One does not need to be ‘utterly incapacitated’ in order to
19 be disabled.”); Reddick, supra (“Only if the level of activity were
20 inconsistent with the Claimant’s claimed limitations would these
21

activities have any bearing on Claimant’s credibility.”).

22
23
24

It is not clear whether the ALJ considered Plaintiff’s testimony

25 about his limited abilities to perform such daily activities (see AR 336
26 [Plaintiff testified he had issues with bathing, caring for his hair and
27 shaving], AR 59 [Plaintiff testified he had difficulty putting on his
28 shoes and socks], AR 337 [Plaintiff testified that hand-washing his
20

1 dishes took him 5 minutes], AR 95 [Plaintiff testified that since
2 2011/2012, he was only able to wash his own dish and place it on the
3

counter], AR 338 [Plaintiff testified that he drove only for “[q]uick

4

trips in [his] immediate vicinity],

AR 338 [Plaintiff testified that a

5
6

trip to the grocery store took 30 to 40 minutes], AR 58 [Plaintiff

7 testified he could not drive for more than 20 minutes], AR 76 [although
8 Plaintiff testified he drove three or four times a week to the grocery
9 store, he did not state how long each trip took him], AR 76 [Plaintiff
10 testified his parents drove him to the July 21, 2015 administrative
11 hearing], AR 58 [Plaintiff testified he was able to sit for about 2
12

hours “[d]epending on the comfort of the chair”], AR 91 [Plaintiff

13
testified that he had to adjust if he sat in a chair “for too long”], AR

14
15

58 [although Plaintiff testified that he could lift a maximum of 75

16 pounds if he was standing upright and did not have to bend, he did not
17 testify about the number of times he could lift that amount of weight in
18 that matter (and the ALJ did not not ask Plaintiff about his ability to
19 lift at the January 31, 2015 administrative hearing); and he testified
20 that lifting while bending would cause him a lot of pain], AR 339
21

[Plaintiff testified that he got together with a friend once a week], AR

22
23
24

60-61 [Plaintiff testified that he got together with friends once every
three months], AR 92 [Plaintiff testified that his mental health issues

25 caused him to “ostracize” or isolate himself], AR 61 [Plaintiff
26 testified that he reads news on the computer for about 30 minutes
27 daily], and AR 101-02 [although Plaintiff testified he took and passed
28 online courses every semester, he testified he only received Cs, and he
21

1 did not testify about how much time the online courses took]. Moreover,
2 although, as noted by the ALJ, there is a statement in a January 3, 2012
3

consultative psychiatric examination report about Plaintiff spending 90

4

percent of his day lying down in bed (see AR 847-48),7 Plaintiff was not

5
6

asked about that statement or the context of that statement at either

7 administrative hearing. Therefore, the degree to which Plaintiff could
8 perform such daily activities may not have been inconsistent with his
9 testimony regarding his limitations.

See Reddick, supra; see also

10 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th
11 Cir. 1999)(“If a claimant is able to spend a substantial part of his day
12

engaged in pursuits involving the performance of physical functions that

13
are transferable to a work setting, a specific finding as to this fact

14
15

may be sufficient to discredit a claimant’s allegations.”).

16
17

Fourth, to the extent that the ALJ found that Plaintiff was not

18 entirely credible based on Plaintiff’s testimony that he stopped working
19 because he was laid off, rather than because of his medical problems,
20 that reason was not clear and convincing.
Although Plaintiff’s
21

testimony was unclear, his being laid off may have been related to his

22
23
24

deteriorating health situation (see AR 84). Unlike Bruton v. Massanari,
268 F.3d 824, 828 (9th Cir. 2001)(finding that the ALJ’s reliance, in

25
7

The statement relied on by the ALJ was the following: “When

26 asked to describe his usual daily activity, the clamant answered, ‘Feel
like crap when waking for about two hours, however, is inconsistent from
27 day-to-day foggy and headache); mostly neeed to lie on bed staring at
ceiling because my back aches and I feel disgusting, this is 90% of my

28 day, interrupted by eating and bathroom trips.’” (underlining added for
emphasis).
22

1 part, on the claimant’s false statements at the administrative hearing
2 and to a doctor that “he left his job because he was laid off, rather
3

than because he was injured”), a case relied on by Defendant (see

4

Defendant’s Brief at 4), there is no indication that Plaintiff gave

5
6

false information about why he left his employment.

7
8 B.

Remand Is Warranted

9
10

The decision whether to remand for further proceedings or order an

11 immediate award of benefits is within the district court’s discretion.
12
Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

Where no

13
14
15

useful purpose would be served by further administrative proceedings, or
where the record has been fully developed, it is appropriate to exercise

16 this discretion to direct an immediate award of benefits.

Id. at 1179

17 (“[T]he decision of whether to remand for further proceedings turns upon
18 the likely utility of such proceedings.”). However, where, as here, the
19 circumstances of the case suggest that further administrative review
20
could remedy the Commissioner’s errors, remand is appropriate.

McLeod

21
v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,

22
23

211 F.3d at 1179-81.

24
25

Since the ALJ failed to properly assess Plaintiff’s credibility,

26 remand is appropriate.

Because outstanding issues must be resolved

27 before a determination of disability can be made, and “when the record
28 as a whole creates serious doubt as to whether the [Plaintiff] is, in
23

1 fact, disabled within the meaning of the Social Security Act,” further
2 administrative proceedings would serve a useful purpose and remedy
3
defects.

4

Burrell

v.

Colvin,

775

F.3d

1133,

1141

(9th

Cir.

2014)(citations omitted).8

5
6
ORDER

7
8
9

For the foregoing reasons, the decision of the Commissioner is

10 reversed, and the matter is remanded for further proceedings pursuant to
11
Sentence 4 of 42 U.S.C. § 405(g).

12
LET JUDGMENT BE ENTERED ACCORDINGLY.

13
14
15 DATED: October 10, 2017
16
17

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28

8

The Court has not reached any other issue raised by Plaintiff
except to determine that reversal with a directive for the immediate
payment of benefits would not be appropriate at this time.
“[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claims regarding the ALJ’s errors in failing to properly (1) assess
certain medical medical evidence (including the opinion of one of
Plaintiff’s treating physicians) (see Plaintiff’s Brief at 9-15; Reply
Brief at 4-5), (2) evaluate the medical expert’s testimony or consider
the written objection to the medical expert’s testimony (see Plaintiff’s
Brief at 15-16; Reply Brief at 5), (3) assess the opinions of several of
Plaintiff’s treating physicians (see Plaintiff’s Brief at 16-20; Reply
Brief at 5-6), (4) determine Plaintiff’s RFC (see Plaintiff’s Brief at
20-22; Reply Brief at 6-7), and (5) consider Plaintiff’s mental
impairments (see Plaintiff’s Brief at 22-23; Reply Brief at 7). Because
this matter is being remanded for further consideration, these issues
should also be considered on remand.
24