Goodwin v. Commissioner of Social Security Administration

Filing 30

ORDER REVERSING THE COMMISSIONER OF SOCIAL SECURITY'S DECISION TO DENY PLAINTIFF SOCIAL SECURITY DISABILITY INSURANCE BENEFITS AND SUPPLEMENTAL SECURITY INCOME: "On the basis of the foregoing, the Commissioner's July 30, 2009 Decisi on denying Plaintiff social security disability insurance benefits and supplemental security income, is HEREBY REVERSED. The Court FINDS that, on remand, the ALJ must find that Plaintiff was disabled, for purposes of the Social Security Act, as of th e date of the ALJ Decision. Further, the Court REMANDS the instant case to the Social Security Administration for further proceedings on the following: 1) determination of Plaintiffs onset date of disability; and 2) determination of Plaintiffs eligib ility for benefits based on her onset date of disability; and 3) if Plaintiff is eligible for benefits based on her onset date, calculation of benefits.Plaintiff's appeal is HEREBY DENIED in all other respects. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on May 31, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STELLA GOODWIN,

)
)
Plaintiff,
)
)
vs.
)
)
COMMISSIONER OF SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 09-00469 LEK-BMK

ORDER REVERSING THE COMMISSIONER OF SOCIAL SECURITY’S
DECISION TO DENY PLAINTIFF SOCIAL SECURITY DISABILITY
INSURANCE BENEFITS AND SUPPLEMENTAL SECURITY INCOME
Before the Court is pro se Plaintiff Stella Jane
Goodwin’s (“Plaintiff”) appeal of Defendant Commissioner of
Social Security Administration’s (“the Commissioner”)
July 30, 2009 decision denying Plaintiff social security
disability insurance benefits and supplemental security income
(“the Decision”).

Plaintiff filed her opening brief on

January 27, 2011, and the Commissioner filed his answering brief
on February 2, 2011.

On April 8, 2011, this Court issued an

entering order finding this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

[Dkt. no. 29.]

After careful

consideration of the parties’ briefs and the relevant legal
authority, and for the reasons set forth below, the
Commissioner’s Decision is HEREBY REVERSED, and the Court HEREBY

FINDS that, on remand, the ALJ must find that Plaintiff was
disabled, for purposes of the Social Security Act, as of the date
of the ALJ Decision.

The Court REMANDS the instant case to the

Social Security Administration for further proceedings on the
following: 1) determination of Plaintiff’s onset date of
disability; and 2) determination of Plaintiff’s eligibility for
benefits based on her onset date of disability; and 3) if
Plaintiff is eligible for benefits based on her onset date,
calculation of benefits.
BACKGROUND
Plaintiff filed her Complaint on October 5, 2009,
seeking judicial review of the Commissioner’s Decision, which
found that Plaintiff was not entitled to either social security
disability insurance benefits or supplemental security income
(“SSI”).

Plaintiff initially filed an application for disability

benefits and a protective application for SSI on March 2, 2005.
Both applications alleged a disability onset date of
June 30, 2002.

The Social Security Administration (“SSA”) denied

the applications initially on August 15, 2005, and on
reconsideration on April 3, 2006.

Plaintiff filed a timely

written request for a hearing on May 30, 2006.

The hearing

occurred on March 22, 2007, in Kailua-Kona, before Administrative
Law Judge Henry M. Tai (“the ALJ”).

Plaintiff was represented by

Gayle Dunn, a non-attorney, and Gwen L. Keliihoomalu testified as

2

an impartial vocational expert.

[Administrative Record (“AR”) at

15-16.]
The ALJ issued his decision (“the ALJ Decision”) on
May 25, 2007.

In considering whether Plaintiff was disabled, the

ALJ applied the five-step analysis described in 20 C.F.R. §§
404.1520 and 416.920(a).

[AR at 17-18.]

First, the ALJ found

that Plaintiff had not engaged in substantial gainful activity
since her alleged onset date.

[AR at 19 (citations omitted).]

Second, the ALJ noted that Plaintiff had a “severe combination of
impairments: a depressive disorder, an anxiety disorder and a
history of substance abuse in remission.”
omitted).]

[Id. (citations

Third, the ALJ found that Plaintiff’s impairments did

not meet or equal a listed impairment, which would preclude all
work.

[Id. (citations omitted).]

The ALJ also found that

Plaintiff was not entirely credible regarding the intensity,
persistence, and effects of her symptoms.

[AR at 23.]

Fourth,

the ALJ found that Plaintiff was limited to “simple repetitive
tasks” and that she had “essentially no other significant
limitations.”

[AR at 24-25.]

The ALJ found that Plaintiff’s

limitation to simple repetitive tasks prevented her from doing
her past relevant work as an office manager, a human resource
specialist, a bookkeeper, or a sales clerk.

[Id.]

Fifth, the

ALJ noted that, at her alleged disability onset date, Plaintiff:
was closely approaching advanced age; had a high school

3

education; was able to communicate in English.

In light of the

fact that Plaintiff had only non-exertional limitations which had
little or no effect on unskilled work, the ALJ found that
Plaintiff could perform other jobs that exist in significant
numbers in the national economy, such as flower picker, nut
sorter, assembler of small products, or produce washer.
25-26.]

[AR at

The ALJ therefore concluded that Plaintiff was not under

a disability as defined by the Social Security Act at any time
through the date of the ALJ Decision.

[AR at 26 (citations

omitted).]
Plaintiff requested review of the ALJ Decision.

On

July 30, 2009, the Appeals Council declined review, rendering the
ALJ Decision the Commissioner’s final Decision.1

[AR at 9-11.]

Plaintiff requested an extension of time to file an appeal of the
Commissioner’s Decision.2

[AR at 8.]

On October 9, 2009, the

Appeals Council granted Plaintiff’s request, giving her thirty
days from the date she received the council’s letter to file a
civil action appealing the Commissioner’s Decision.

[AR at 6-7.]

Plaintiff timely filed her Complaint on October 5, 2009.

1

In discussing the merits of this case, the Court will
refer to the ALJ Decision.
2

It appears that Plaintiff’s request is dated
October 1, 2009, but the date on her request is partially
obscured. [AR at 8.]
4

I.

Plaintiff’s Opening Brief
In her Opening Brief,3 Plaintiff argues that

approximately thirty documents contained in the Administrative
Record’s exhibits are not her records and those records pertain
to other persons.

She contends that “those documents were used

to determine [her] denials by the doctors that helped to
determine [her] disability.”

[Opening Brief at 1.]

For example,

the agency doctors talked about Plaintiff’s drug dependency, but
Plaintiff denies having a drug abuse problem.

According to

Plaintiff, there was only one reference to marijuana use in her
files.

A visiting doctor at Adult Mental Health asked her if she

had ever smoked marijuana to ease the pain of losing her partner,
and Plaintiff told him that she had tried it.

Plaintiff states

that, when she discovered that there was an issue of drug abuse
in her case, she submitted a retraction letter from Adult Mental
Health.

[Id. at 1-2.]
Plaintiff states that, during the period from 1994 to

2007, her partner of seventeen years died after an extended
battle with colon cancer.

Their daughter was distraught and

tried to commit suicide fourteen times within a year after his
death.

The stress of that situation was more than Plaintiff

3

Plaintiff’s document is titled “Findings of fact and
conclusions of law”. Chief United States District Judge Susan
Oki Mollway construed it as Plaintiff’s Opening Brief. [Letter
to Pltf. from Chief Judge Mollway, filed 1/27/11 (dkt. no. 25).]
5

could bear.

According to Plaintiff, her daughter was also

involved in a car accident that resulted in brain damage and
various physical injuries.

The brain damage led to serious

psychological problems, requiring a two-week hospitalization in a
children’s mental hospital.

Also during this thirteen-year

period, Plaintiff had surgery to remove three lumps in her left
breast, and she had an emergency gall bladder removal.
2-3.]

[Id. at

The stress and anxiety that Plaintiff experienced

compromised her immune system, resulting in “ongoing infections,
skin allergies, [and] asthma.”

[Id. at 3.]

In addition, she

“suffered neck and lower skull trauma” from two car accidents
during this period.

[Id.]

After the last accident, Plaintiff

required eighteen staples in her skull, and she began suffering
from memory problems, headaches, and difficulty moving her neck
and right shoulder.

[Id.]

Plaintiff contends that the ALJ Decision failed to
address: her hip replacement in 2000; her degenerative bone
disease; the dislocated knees that she has had since age twelve;
her carpal tunnel syndrome; her memory loss, which also triggers
anxiety attacks; and her compromised immune system, which has
caused pneumonia, asthma, high blood pressure, and respiratory
problems.

[Id.]

Plaintiff also contests the ALJ’s finding that

she could perform other work because she lives one hundred miles
from the nearest town that may have employment.

6

Further,

according to Plaintiff, most of the businesses with jobs like the
ones identified by the vocational expert - flower picker and
fruit sorter - are family businesses that hire from within their
family.

Finally, she argues that her carpal tunnel syndrome

would make these jobs very painful for her.
II.

[Id. at 3-4.]

The Commissioner’s Answering Brief
The Commissioner argues that this Court should affirm

the Decision in its entirety because it is supported by
substantial evidence and there are no legal errors.
Brief at 1.]

[Answering

The Commissioner also notes that, from December

2003 to February 2007, Plaintiff did bookkeeping work for a
friend, applied for work, tried to go into business with a
partner, did heavy yard work, and traveled to Las Vegas to visit
her daughter.

[Id. at 2-3 (citing AR 231-33, 200, 222, 227).]

On July 28, 2005, Plaintiff underwent a consultive mental status
examination by Robert Chamberlain, Psy.D.

Dr. Chamberlain noted,

inter alia, that although Plaintiff was somewhat anxious, she was
not in acute distress, was well oriented, had above average
intelligence, and had no problems with insight, judgment, and
reasoning.

Dr. Chamberlain opined that Plaintiff would be able

attend a job, remember simple instructions, and perform low
stress work satisfactorily if there was minimal contact with
others.

[Id. at 3-4 (citing AR at 253-55).]

Dr. Chamberlain

examined Plaintiff again in March 2006 in light of her complaints

7

of ongoing depression and anxiety.

At that time, Plaintiff

appeared disheveled and somewhat irritable and anxious.

Her test

result showed only average intelligence, but Dr. Chamberlain
noted that Plaintiff forgot her glasses and this may have
resulted in a lower score.

His ultimate opinion about

Plaintiff’s employability remained unchanged, except that he
noted that may have some difficulty with low stress work.
at 5-6 (citing AR at 360-63).]

[Id.

Also in March 2006, a State

agency psychologist, David Lam, Ph.D., reviewed Plaintiff’s
record and opined that Plaintiff had the functional capacity to
do simple, repetitive tasks.

He also opined that the treatment

records did not support the opinion of Plaintiff’s mental health
provider, John Hibscher, Ph.D., that Plaintiff had difficulty
with simple work instructions, would not be able to attend a job
regularly, could not get along with others, and could not cope
with a low-demand job.

[Id. (citing AR at 340).]

In response to Plaintiff’s claim that the
Administrative Record contains exhibits that pertain to other
persons, the Commissioner notes that the ALJ removed pages from
the record that Plaintiff’s representative argued did not belong
to Plaintiff.

[Id. at 9-10.]

Plaintiff objected to numerous

pages in Exhibit 9F and to pages 11-12 and 19-20 in Exhibit 8F.
The ALJ ultimately stated that he would remove both exhibits in
their entirety.

[AR 490-91 (hearing transcript).]

8

The

Commissioner argues that there is no evidence that the documents
which the ALJ considered belonged to anyone other than Plaintiff.
[Answering Brief at 10.]
The Commissioner also argues that there was no
reversible error in the ALJ’s recognition of Plaintiff’s prior
marijuana use.

Plaintiff admits that she tried marijuana in the

past, but she asserts that she does not currently have a drug
problem.

The Commissioner argues that this is consistent with

the ALJ’s findings and the evidence in Plaintiff’s medical
records.

The Commissioner also emphasizes that drug use was not

at issue in Plaintiff’s case; the ALJ did not deny Plaintiff’s
application based on drug use, nor did he base his adverse
credibility determination on drug use.

[Id. at 10-11.]

The Commissioner contends that there is substantial
evidence in the record to support the ALJ’s finding that
Plaintiff retained the residual functional capacity (“RFC”) to
perform simple, repetitive tasks.

The Commissioner argues that,

although Plaintiff complained of mobility problems, there was no
medical documentation substantiating the extent of her claimed
limitations.

[Id. at 12-13.]

Moreover, the Commissioner notes

that Plaintiff was not under medical care for her physical
ailments and no doctor assessed any limitations to her physical
functions.

Plaintiff has not identified any evidence suggesting

that the ALJ’s findings were inaccurate.

9

[Id. at 13.]

As to Plaintiff’s mental health condition, the
Commissioner argues that Plaintiff only received conservative
treatment and therapy and that her daily activities indicated
that she was functional in spite of her condition.

Further,

several doctors opined that Plaintiff would be able to perform at
least simple, repetitive tasks.

[Id. at 14-15.]

The

Commissioner apparently acknowledges that Plaintiff’s testimony
cast doubt upon whether she was able to keep up with her daily
activities, but the Commissioner argues that the ALJ’s
interpretation of the evidence was reasonable and supported by
substantial evidence.

Plaintiff’s disagreement with the ALJ’s

findings and the presence of some contrary evidence in the record
is not sufficient to warrant reversal.

[Id. at 16.]

Finally, the Commissioner emphasizes that the
applicable test in the final step of the five-factor analysis is
whether an applicant can perform jobs that exist in significant
numbers in the national economy; it is irrelevant whether there
is a significant number of those jobs in the local economy.
at 16-17.]

[Id.

Even if the local job market was relevant, Plaintiff

has not provided any evidence in support of her contention that
the jobs which the ALJ referred to do not exist in the local
economy.

She also failed to support her claim that she cannot

perform the identified jobs because of her physical limitations.
There was no medical evidence suggesting that Plaintiff had

10

difficulty using her hands or wrists, and therefore the ALJ was
not required to incorporate extremity limitations in determining
Plaintiff’s RFC.

[Id. at 18-19.]

In conclusion, the Commissioner urges the Court to
affirm the Decision because it is supported by substantial
evidence and is correct as a matter of law.
STANDARD
Under the Social Security Act, an applicant may appeal
the Commissioner’s final decision to a federal district court.
42 U.S.C. § 405(g).

The district court reviews the decision of

the Commissioner to determine whether the decision is supported
by substantial evidence or is based on an error of law.

Bruce v.

Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citation omitted).
Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to
support a conclusion. The evidence must be more
than a mere scintilla but not necessarily a
preponderance. The ALJ’s findings will be upheld
if supported by inferences reasonably drawn from
the record. . . . The court will uphold the ALJ’s
conclusion when the evidence is susceptible to
more than one rational interpretation. Finally,
the court will not reverse an ALJ’s decision for
harmless error, which exists when it is clear from
the record that the ALJ’s error was
inconsequential to the ultimate nondisability
determination.
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations and quotation marks omitted) (alteration in original).
In determining whether the decision is supported by substantial
evidence, the court must consider the administrative record as a
11

whole and, where the evidence can reasonably support either
affirmance or reversal, the district court may not substitute its
judgment for the ALJ’s.

Parra v. Astrue, 481 F.3d 742, 746 (9th

Cir. 2007) (citations omitted).
DISCUSSION
I.

Eligibility for Disability Benefits
In order to establish that she is eligible for social

security disability benefits, a claimant has to demonstrate that
she is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months[.]”

42 U.S.C. § 423(d)(1)(A).

The ALJ

evaluates the claimant’s request for disability benefits based on
a

five-step analysis.

20 C.F.R. § 404.1520; see also Parra, 481

F.3d at 746.
First, the ALJ determines whether the claimant is
engaged in “substantial gainful activity”.

20 C.F.R. §§

404.1520(a)(4)(i) & (b), 404.1574 (guidelines for “substantial
gainful activity” for employees), 404.1575 (guidelines for
“substantial gainful activity” in self-employment).

If the

claimant is engaged in substantial gainful activity, she is not
disabled.

§ 404.1520(a)(4)(i).
Second, the ALJ considers whether the claimant has a
12

medically severe impairment or combination of impairments and
whether the impairment meets the duration requirement.4

If the

claimant does not have a medically severe impairment, or
combination of impairments, that meets the duration requirement,
she is not disabled.

§ 404.1520(a)(4)(ii).

The medically severe

impairment or impairments must “significantly limit[] [the
claimant’s] physical or mental ability to do basic work
activities[.]”

§ 404.1520(c).

The third factor also considers the severity of the
claimant’s impairment or combination of impairments.

If the

claimant’s impairment, or combination of impairments, meets or
equals one of the impairments listed in Appendix 1 to Subpart P,
Regulation 4, and satisfies the duration requirement, she is
disabled.

§ 404.1520(a)(4)(iii), (d).
Fourth, if the claimant is still able to perform her

“past relevant work”5 in light of her “residual functional
capacity”,6 she is not disabled.

§ 404.1520(a)(4)(iv), (f).

4

“Unless your impairment is expected to result in death, it
must have lasted or must be expected to last for a continuous
period of at least 12 months. We call this the duration
requirement.” 20 C.F.R. § 404.1509.
5

“Past relevant work is work that you have done within the
past 15 years, that was substantial gainful activity, and that
lasted long enough for you to learn to do it.” 20 C.F.R. §
404.1560(b)(1) (citing 20 C.F.R. § 404.1565(a)).
6

A claimant’s “residual functional capacity”, or RFC, is
the most she can do in light of the limitations caused by her
(continued...)
13

At the final step, the ALJ considers the claimant’s
RFC, as well as her age, education, and work experience.

If, in

light of these considerations, the claimant can adjust to other
work, she is not disabled.
she is disabled.

If she cannot make the adjustment,

§ 404.1520(a)(4)(v).

The other work the

claimant can perform “must exist in significant numbers in the
national economy (either in the region where [she] live[s] or in
several regions in the country).”

20 C.F.R. § 404.1560(c)(1).

The claimant bears the burden of proving steps one
through four, consistent with the general rule
that [a]t all times, the burden is on the claimant
to establish [her] entitlement to disability
insurance benefits. Once this prima facie case is
established, the burden shifts to the Commissioner
at the fifth step to show that the claimant may
perform other gainful activity.
Parra, 481 F.3d at 746 (citations and internal quotation marks
omitted) (alterations in original).
II.

Alleged Errors in the ALJ Decision
Plaintiff appears to argue that the ALJ erred in:

1) considering medical records that did not belong to her;
2) failing to consider all of her physical and mental health
impairments; 3) finding that she could perform jobs that she is

6

(...continued)
impairment or impairments and the associated symptoms, including
pain. 20 C.F.R. § 404.1545(a)(1). In determining the claimant’s
RFC, the ALJ considers the claimant’s “ability to meet the
physical, mental, sensory, and other requirements of work[.]” §
404.1545(a)(4). The ALJ determines a claimant’s RFC based on all
the relevant evidence in the record. See §§ 404.1520(a)(3),
404.1545(a)(3).
14

unable to perform because of her physical limitations; and
4) considering jobs that are not available in Plaintiff’s
community.
A.

Erroneous Medical Records
First, Plaintiff states that her representative at the

hearing noticed upon reading Plaintiff’s file that “many of the
exhibits ( aound (sic) 30 documents) were of people that were not
[Plaintiff].”

[Opening Brief at 1.]

Plaintiff believes that

“those documents were used to determine [her] denials by the
doctors that helped to determine [her] disability.”
(emphasis added).]

[Id.

Plaintiff, however, does not identify which

documents are not her medical records, nor does she identify the
agency doctor, or doctors, who allegedly considered medical
records that did not belong to Plaintiff.
During the hearing before the ALJ, Plaintiff objected
to pages 3-13, 31-39, and 40-42 in Exhibit 9F and to pages 11-12
and 19-20 in Exhibit 8F.

The ALJ stated that he would exclude

both exhibits in their entirety.
transcript).]

[AR 490-91 (hearing

The ALJ, however, apparently admitted Exhibit 8F

and 9F in part.

He admitted Exhibit 8F pages 1-16, [AR at

273-88,] and Exhibit 9F pages 1-19 [AR at 289-307].

It is not

clear whether the ALJ excluded the pages that Plaintiff objected
to and renumbered the exhibits or whether some of the pages that
Plaintiff objected to remain in the record.
15

The Court, however,

notes that each page of Exhibit 8F, with the exception of page 3,
and each page of Exhibit 9F, with the exception of page 5, bears
Plaintiff’s name.

Exhibit 8F, page 3, and Exhibit 9F, page 5

appear to be continuations of Exhibit 8F, page 2, and Exhibit 9F
page 4, respectively, and both of those pages bear Plaintiff’s
name.

[AR at 274-75, 292-93.]

Thus, there is no evidence in the

Administrative Record that the ALJ considered medical records
that belonged to another person.
Plaintiff appears to claim that some of the agency
doctors who rendered medical opinions adverse to her case
considered medical records belonging to another person.

She

asserts that some of the records the agency doctors considered
related to men, and she argues that the agency doctors
erroneously referred to her as being drug dependent.
Brief at 1.]

[Opening

There is nothing in Exhibits 8F and 9F which

indicates that the records belong to a male patient.

As to her

alleged drug dependency, Plaintiff states:
There was only one time of (sic) my entire 7 year
history of doctor’s reports that marijuana was
mentioned in my files. . . . Dr. Hibscher, my
phycologist (sic), any of the ongoing phychiatrist
(sic) from Adult Mental Health, or my personal
physician, Dr. Lora Aller, during that period of
time have made no mention of drug abuse.
[Id. at 2.]
The ALJ found that Plaintiff had a “history of
substance abuse in remission.”

[AR at 19 (citations omitted).]

16

Although Plaintiff asserts that her doctors never mentioned drug
abuse, Dr. Hibscher did note in 2003 that he was concerned that
Plaintiff “may be back on drugs.”

[AR 199.]

He also noted on

December 8, 2004 that Plaintiff said she “might go back to
smoking marijuana[.]”

[AR at 236.]

Rodger Kollmorgan, M.D., who

Plaintiff saw for counseling at West Hawaii Mental Health Center,
[AR at 84,] noted Plaintiff’s cannabis abuse and her goal of
sobriety in his first clinical note, dated January 2004.
313.]

[AR at

Thus, there is substantial evidence in the record that

Plaintiff had at least a prior history of drug use.

The fact

that the ALJ and the agency doctors referred to Plaintiff’s prior
drug abuse does not prove that they erroneously considered
medical records belonging to another person.
Further, even assuming arguendo that the ALJ and the
agency doctors considered a history of drug use based on medical
records belonging to another person, the error does not require
reversal because it was inconsequential to the ultimate
disability determination.

See Tommasetti, 533 F.3d at 1038.

The

ALJ did not base either his adverse credibility determination or
his determination of Plaintiff’s RFC on her prior drug use.
Plaintiff’s appeal is therefore DENIED as to her claim that the
ALJ and the agency doctors erred in considering the medical
records of another person.

17

B.

Five Step-Analysis
The Court now turns to the remainder of Plaintiff’s

arguments, which relate to the ALJ’s five-step analysis.
1.

Step One

The ALJ found that Plaintiff has not been engaged in
substantial gainful activity since her alleged onset date.
at 19 (citations omitted).]
2.

[AR

Neither party contests this finding.

Steps Two & Three

The ALJ found that Plaintiff “has the following severe
combination of impairments: a depressive disorder, an anxiety
disorder and a history of substance abuse in remission.”
19 (citations omitted).]

[AR at

The ALJ also found that Plaintiff’s

combination of impairments did not meet or equal any listed
impairments.

[Id. (citations omitted).]

Neither party contests

the equivalency finding and there is no dispute that Plaintiff
suffers from depression and anxiety and that the combination of
Plaintiff’s impairments is severe.

The Court, however,

recognizes that Plaintiff denies prior substance abuse and she
contends that she has other impairments that the ALJ failed to
consider.
3.

Step Four

The ALJ found that Plaintiff had the RFC “to meet the
exertional and nonexertional demands of work except that she is
limited to simple repetitive tasks.
18

She may be better suited for

tasks involving minimal contact with others but this would not be
a significant restriction in her ability to function.”
19.]

[AR at

In so finding, the ALJ applied a two-step analysis: 1)

“whether there is an underlying medically determinable physical
or mental impairment(s) - i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory diagnostic
techniques - that could reasonably be expected to produce the
claimant’s pain or other symptoms[;]” [id.;] and 2), if the
claimant satisfies the first factor, the ALJ evaluates “the
intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the
claimant’s ability to do basic work activities” [AR at 20].

The

ALJ recognized that objective medical evidence does not always
convey the severity of an impairment, and he noted that he is
required to make a credibility finding based on the entire record
if the claimant’s statements about the intensity, persistence, or
limiting effects of her pain and symptoms are not substantiated
by objective medical evidence.

[Id.]

In making that credibility

finding, the ALJ noted that he must consider the following
factors in addition to the objective medical evidence:
1.
The claimant’s daily activities;
2.
The location, duration, frequency, and
intensity of the claimant’s pain or other
symptoms;
3.
Factors that precipitate and aggravate the
symptoms;
4.
The type, dosage, effectiveness, and side
effects of any medication the claimant takes or
19

has taken to alleviate pain or other symptoms;
5.
Treatment, other than medication, the
claimant receives or has received for relief of
pain or other symptoms;
6.
Any measures other than treatment the
claimant uses or has used to relieve pain or other
symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or
sleeping on a board); and
7.
Any other factors concerning the claimant’s
functional limitations and restrictions due to
pain or other symptoms.
[Id. (citing 20 CFR 404.1529(c) and 416.929(c) (some citations
omitted)).]
The ALJ summarized Plaintiff’s condition and claimed
impairments as follows:
[Plaintiff] has described an inability to work due
to feelings of depression and anxiety, as well as
asthma, high blood pressure, hip problems, chipped
left knee cap and injuries sustained in a motor
vehicle accident. She testified that she has pain
radiating from her back down to her legs, that she
cannot walk, sit or stand for very long, and that
she cannot lift and/or carry more than about 16-20
pounds, cannot reach overhead and cannot grasp
things without dropping them. She also stated
that she has difficulty with postural movements,
and that she uses a cane to help her get around.
She further described having problems completing
tasks, following instructions, remembering and
concentrating. She reports that she cannot handle
stress, and has anxiety attacks and prefers to
isolate herself from others. She testified that
she has dreams that cause her awaken (sic), in
sweats, about two to three times a night, and that
her medication makes her feel drowsy.
[Id. (citing Exhs. 2E, 3E, 7E, 14E).]
The ALJ then reviewed Plaintiff’s medical records.
pertinent part, the ALJ noted that Plaintiff’s physician,

20

In

Lora Aller, M.D., only treated Plaintiff for “transient physical
ailments such as rashes, shingles and colds.”
Exhs. 1F, 3F).]

[AR at 21 (citing

Plaintiff’s psychologist, John Hibscher, Ph.D.,

noted that, from December 2003 to November 2004, Plaintiff
reported traveling to the mainland to visit her daughter, seeking
employment, and eventually taking a part-time job doing
bookkeeping for a friend in October 2004.

In January 2005,

Plaintiff reported to Dr. Hibscher that she was pleased with her
adjustment to her job.

[Id. (citing Exh. 2F).]

Plaintiff underwent a consultive evaluation by
Robert C. Chamberlain, Psy.D., in July 2005.

He opined that her

functioning was adequate with respect to her activities of daily
living, concentration, and social function.

[AR at 21-22.]

Although Plaintiff complained of a concussion and poor memory
because of a recent car accident, Dr. Chamberlain found her to be
“outgoing” and “friendly” and “alert and cooperative”.
22.]

[AR at

He confirmed that Plaintiff had some difficulty with

memory, but he opined that she did not have any problems with
insight, judgment, or reasoning.

He therefore concluded that

Plaintiff could carry out a simple work routine with minimal
limitations.

[Id. (citing Exh. 5F).]

The ALJ noted that

Dr. Kollmorgan made the same conclusion in his December 2005
report.

[Id. (citing Exh. 10F).]
Only a few weeks later, Dr. Hibscher reported that

21

Plaintiff showed reduced concentration and memory and that she
needed assistance with her activities of daily living.
diagnosed her with major depression, recurrent.
Exh. 11F).]

He

[Id. (citing

The ALJ, however, noted that Dr. Chamberlain

evaluated Plaintiff again in March 2006 and, although he
recognized that Plaintiff had regressed in some respects, he
found that her cognitive function remained in tact.
23.]

[AR at 22-

Dr. Chamberlain again concluded that Plaintiff could carry

out a simple work routine and could get along with others with
minimal contact.

[AR at 23 (citing Exh. 16F).]

In a report dated August 31, 2006, Dr. Kollmorgan
opined that Plaintiff could not work because of her depression,
anxiety, and a possible attention deficit disorder.

[AR at 466.]

The ALJ noted that the August 31, 2006 report did not refer to
any clinical findings supporting his opinion, and that
Dr. Kollmorgan’s progress notes suggest he had not treated
Plaintiff since December 2005.

[AR at 23.]

The ALJ also noted

that Plaintiff saw Dr. Hibscher from 2006 through approximately
February 2007 and, during that time, Plaintiff functioned well
enough to travel to the mainland to help care for her
grandchildren and to try to resume working, even though she did
not always take her anti-depressant medication.

In addition, she

remained active in her appeal of the denial of her social
security benefits.

[Id. (citing Exh. 18F).]

22

Based on Plaintiff’s medical records, the ALJ found
that Plaintiff’s “medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but that
[Plaintiff’s] statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely
credible.”

[Id.]
It is well settled that “[i]n evaluating the

credibility of pain testimony after a claimant produces objective
medical evidence of an underlying impairment, an ALJ may not
reject a claimant’s subjective complaints based solely on a lack
of medical evidence to fully corroborate the alleged severity of
pain.”

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

The Ninth Circuit has also stated that:
The claimant is not required to show that her
impairment could reasonably be expected to cause
the severity of the symptom she has alleged; she
need only show that it could reasonably have
caused some degree of the symptom. If the
claimant meets the first test and there is no
evidence of malingering, the ALJ can only reject
the claimant’s testimony about the severity of the
symptoms if she gives specific, clear and
convincing reasons for the rejection.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citations
and internal quotation marks omitted).
The ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the symptoms
Plaintiff reported.

[AR at 23.]

The ALJ did not make a finding

or cite any evidence that Plaintiff was malingering.
23

The ALJ was

therefore required to support his adverse credibility
determination with specific, clear and convincing reasons.
Vasquez, 572 F.3d at 591.

See

“The ALJ must specifically identify

what testimony is credible and what testimony undermines the
claimant’s complaints.

In this regard, questions of credibility

and resolutions of conflicts in the testimony are functions
solely of the Secretary.”

Valentine v. Comm’r of Soc. Sec.

Admin., 574 F.3d 685, 693 (9th Cir. 2009) (citation and block
quote format omitted).
In the present case, the ALJ did give specific reasons,
based on Plaintiff’s medical records, her testimony about her
daily activities, and other extrinsic evidence about her
activities, for his adverse credibility determination.

The crux

of this case is whether the ALJ’s reasons were clear and
convincing.

The ALJ’s reasons consist of five findings relevant

to Plaintiff’s RFC: 1) “her ability to concentrate and maintain
persistence and pace[;]” 2) her “ability to perform simple
repetitive tasks[;]” 3) “her ability to interact with others”; 4)
the lack of any deterioration in her condition due to mental
impairment; and 5) the lack of exertional limitations
attributable the effect of Plaintiff’s asthma, high blood
pressure, car accident injuries, and other conditions.

[AR at

23-24.]
The first two findings, Plaintiff’s ability to

24

concentrate and ability to perform simple repetitive tasks, are
related and the Court will address those findings together.

The

ALJ noted that Plaintiff’s medical records show that, at her
medical appointments, she was consistently “alert and
well-oriented . . . exhibiting adequate reasoning, judgment or
insight[,]” and, for the most part, she was “adequately groomed
and dressed[.]”

[AR at 23.]

Plaintiff’s daughter, however,

stated that Plaintiff’s appearance and hygiene were “sometimes
poor.”

[Id.]

Plaintiff’s test scores show average intelligence

and no difficulty reading, but “moderate difficulty with recall
and concentration[.]”

[Id.]

The ALJ pointed out that, on a

daily basis, Plaintiff cared for her pets, worked on puzzles, and
prepared simple meals for herself.
drive.

Plaintiff is also able to

The ALJ therefore found that Plaintiff retained the

ability to perform simple repetitive tasks and that her
concentration, persistence and pace were only moderately
restricted.

[Id.]

The Court finds that these reasons are not clear and
convincing.

The fact that Plaintiff attends periodic medical

appointments, which presumably only take up a relatively small
portion of her day, and that she appears well-oriented and
adequately groomed during those appointments is not clear and
convincing evidence that she would be able to maintain regular
attendance and attention at a job.

25

Similarly, activities

performed periodically throughout the day, like caring for pets,
working on puzzles, and preparing simple meals - primarily frozen
dinners, Slim Fast, and saimin, [AR at 24 (ALJ Decision), 115
(Function Report by Plaintiff, dated 1/7/06),] - and driving
occasionally are not clear and convincing evidence that Plaintiff
has the physical capacity to perform simple and repetitive tasks
for a job consistently throughout a work day.

See 20 C.F.R. §

404.1545(a)(4) (noting that, in determining the claimant’s
residual functional capacity, the ALJ considers the claimant’s
“ability to meet the physical, mental, sensory, and other
requirements of work”).
Third, the ALJ found that Plaintiff only has minimal
restrictions in her ability to interact with others and that she
could get along with people at work, particularly if the job
required minimal contact with others.

In support, the ALJ noted

that Plaintiff communicates appropriately with her doctors during
her appointments, goes shopping, and “remains in contact with her
daughter, whom she has visited.”

[AR at 23.]

Plaintiff goes shopping about twice a week.

The ALJ found that

[AR at 24.]

Again,

interacting with doctors or shopping on a periodic basis is not
clear and convincing evidence that Plaintiff has the capacity to
interact with co-workers and supervisors on a regular basis in a
work environment.

Plaintiff’s contact with her daughter also

does not support the ALJ’s finding that Plaintiff is capable of

26

adequate personal interaction in a work environment.
Plaintiff’s daughter, who was living on the mainland at
the beginning of Plaintiff’s benefits application process but
apparently moved back to Hawai`i, stated that she visits or calls
Plaintiff to check if Plaintiff needs anything, to seek if
Plaintiff has fed and given water to Plaintiff’s cats, and to
remind Plaintiff to do things like take a shower, clean the
house, and take her medicine.

Further, although Plaintiff

maintains contact with her daughter, Plaintiff no longer spends
time with her grandchildren, and Plaintiff has severed ties with
her other family members and friends.

In fact, although

Plaintiff previously loved spending time with her grandchildren,
she no longer has the desire to do so.

[AR at 123-31 (Function

Report Adult - Third Party, dated 1/9/06 by Jessica Alip).]
Fourth, the ALJ found that Plaintiff had “no episodes
of deterioration due to any mental impairment.”

[AR at 24.]

In

support of this finding, the ALJ stated only that Plaintiff “has
been treated conservatively with medications and therapy, and has
not required any inpatient mental care.”

[Id.]

The ALJ

improperly rejected Plaintiff’s subjective testimony about the
severity of her mental impairments based solely upon a lack of
medical evidence corroborating the full extent of Plaintiff’s
claimed impairments.

See Burch v. Barnhart, 400 F.3d 676, 680

(9th Cir. 2005).

27

Fifth, the ALJ rejected Plaintiff’s claim that she was
not able to work due to asthma, high blood pressure, and her car
accident injuries.

He also rejected her complaints of difficulty

with mobility and with grasping objects.

In doing so, the ALJ

noted Plaintiff’s success in controlling her asthma and high
blood pressure with medication, and the lack of evidence of “any
frequent exacerbations.”

[AR at 24.]

The ALJ noted Plaintiff’s

prior joint replacement, “occasional” complaints of headache and
back pain, and injuries in the car accident.

The ALJ, however,

pointed out that the medical evidence about these ailments did
not reflect any ongoing impairment.

[Id.]

If this is all of the

evidence that the ALJ considered in rejecting Plaintiff’s
subjective pain testimony, his finding is erroneous.

See Burch,

400 F.3d at 680.
The ALJ, however, also discussed what he called
Plaintiff’s “wide range of daily activity” and noted that
Plaintiff was able to live an independent life with few
limitations.

[AR at 24.]

As discussed above, Plaintiff’s

activities around her home are not clear and convincing evidence
that she has the capacity to meet the physical requirements of a
job.

For example, the ALJ pointed out that Plaintiff’s

activities include preparing her own meals and washing dishes.
Plaintiff, however, testified that she washes her dishes once a
week and that her meals usually consist of Slim Fast because it’s

28

“the least difficult thing to do.”

[AR at 505-06.]

When she

does wash the dishes, the task takes “a couple of hours” because
Plaintiff has to either sit down and wash them or lean on the
counter.

[AR at 506.]

Such activities do not indicate that

Plaintiff has the physical capacity to function in a work
environment.

Thus, even if the ALJ considered Plaintiff’s daily

activities in rejecting her subjective testimony about the extent
of her pain from her physical conditions, his findings do not
constitute clear and convincing evidence that would warrant his
adverse credibility finding.
Having considered the ALJ’s five findings supporting
his adverse credibility determination, individually and
collectively, this Court FINDS that the ALJ’s adverse credibility
determination is not supported by substantial evidence in the
record.

The Court also FINDS that, insofar as the ALJ determined

Plaintiff’s RFC in light of his adverse credibility
determination, the ALJ’s finding that Plaintiff has the RFC to
perform simple repetitive tasks is not supported by substantial
evidence in the record.
4.

Step Five

The ALJ found that, in light of Plaintiff’s age,
education, work experience, and RFC, there are jobs which exist
in significant numbers in the national economy that Plaintiff can
perform, and therefore Plaintiff was not disabled for purposes of

29

the Social Security Act through the date of the ALJ Decision.
[AR at 26.]

Insofar as the ALJ’s RFC finding was erroneous, his

finding that there are jobs in the national economy which
Plaintiff can perform is also erroneous.

The Court therefore

REVERSES the ALJ’s ultimate finding that Plaintiff was not
disabled through the date of the ALJ Decision.
In light of this Court’s ruling, the Court need not
address Plaintiff’s remaining arguments - that she is not
physically able to perform the jobs which the ALJ identified and
that the ALJ should only have considered jobs that were available
in Plaintiff’s community.

Plaintiff’s appeal is therefore DENIED

AS MOOT as to these issues.
III. Scope of Remand
The Court now turns to the scope of the remand
proceedings.
Remand for further administrative proceedings
is appropriate if enhancement of the record would
be useful. Conversely, where the record has been
developed fully and further administrative
proceedings would serve no useful purpose, the
district court should remand for an immediate
award of benefits. More specifically, the
district court should credit evidence that was
rejected during the administrative process and
remand for an immediate award of benefits if (1)
the ALJ failed to provide legally sufficient
reasons for rejecting the evidence; (2) there are
no outstanding issues that must be resolved before
a determination of disability can be made; and (3)
it is clear from the record that the ALJ would be
required to find the claimant disabled were such
evidence credited.

30

Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138
(9th Cir. 2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593
(9th Cir. 2004)).
The present case meets the first requirement - the ALJ
failed to provide a legally sufficient basis for his adverse
credibility determination, and therefore he also failed to
provide a legally sufficient basis for his RFC finding.
This case also meets the third requirement - based on
the existing record excluding the previous adverse credibility
determine, the ALJ would be required to find Plaintiff disabled.
The ALJ stated at the hearing that, based on Plaintiff’s
testimony, her RFC would be limited to less than sedentary work.
[AR at 520.]

When asked about a hypothetical person with

Plaintiff’s background and a limitation to less than sedentary
work, the vocational expert testified that the hypothetical
person could not be employed.

[AR at 519.]

The Court therefore

FINDS that, on remand, the ALJ is required to find that Plaintiff
was disabled, for purposes of the Social Security Act, as of the
date of the ALJ Decision.
There is, however, an outstanding issue that must be
resolved before a final determination of Plaintiff’s entitlement
to disability benefits.

Although it is clear that Plaintiff was

disabled as of the date of the ALJ Decision - May 25, 2007, it is
not clear whether Plaintiff was disabled from her alleged onset

31

date - June 30, 2002.
At the administrative hearing, Plaintiff testified that
she could only sit comfortably for approximately thirty to
forty-five minutes at a time because of her prior hip replacement
surgery.

She also testified that her condition was getting worse

because a hip replacement typically lasts for ten years and, at
the time of the hearing, her hip replacement was seven years old
and, as a result, her back nerve pain was starting to return.
Further, because of her degenerative bone disease, it is
difficult for Plaintiff to stay in any position for an extended
period of time.

[AR at 492-93.]

Plaintiff testified that it is

very uncomfortable for her to sit on a backless stool because a
backless stool does not provide sufficient support.

Plaintiff

stated that she can only stand comfortably for fifteen to twenty
minutes at a time, and she cannot stand and use her hands to
manipulate objects for long periods of time because she has to
use one arm to maintain her balance.

[AR at 493-94.]

Plaintiff

testified that she cannot stoop, crouch, crawl, or do overhead
work.

[AR at 497-99.]

She can grasp small objects, but she

described herself as “dropsy”.

[AR at 501.]

She cannot kneel

because of the bad knees that she had since age eleven, cannot
climb, and has difficulty with stairs.

[AR at 502-04.]

According to Plaintiff, she has experienced these limitations
since 2002.

[AR at 492-95, 497-99, 501-04.]

32

Plaintiff testified that she has difficulty
concentrating and has poor short-term memory; she sometimes
forgets things immediately after hearing them, but she can retain
some things for about ten minutes.

Her attention span had been

decreasing for a few years prior to the hearing, and she has
difficulty focusing on things, particularly when she knows they
are important.

She is able to read for thirty minutes at a time,

but she sometimes has to read chapters over to know what she is
reading.

[AR at 499-500.]

Plaintiff also stated that she has

difficulty following verbal and written instructions and has
difficulty completing tasks.

She does not handle stress well,

and stress compromises her intelligence.

[AR at 506-09.]

According to Plaintiff, she has experienced these limitations
since 2002.

[AR at 499-502, 506-09.]

Thus, Plaintiff’s

testimony arguably supports her claim that she was disabled from
the alleged onset date.
Even Plaintiff’s treating doctors, however, opined at
different points prior to the ALJ Decision that Plaintiff was
able to work.

In his report after Plaintiff’s December 12, 2005

visit, Dr. Kollmorgan opined that, in the context of full-time,
competitive work, Plaintiff had the RFC, in light of
psychological/psychiatric considerations alone, to: understand
and remember simple instructions; attend a job regularly and
persist at work tasks with ordinary supervision; get along with

33

supervisors and co-workers during minimal contact; and adapt to a
low-demand, entry-level job.

[AR at 310-11.]

Plaintiff herself

reported to Dr. Hibscher at various points during 2004 and 2005
that she was working part-time or looking for work.
(citing Exh. 2F).]

[AR at 21

Thus, there is some evidence suggesting that

Plaintiff did not become disabled until some time after her
alleged onset date.
The Ninth Circuit has noted that:
As a general matter, [Social Security
Regulation (“SSR”)] 83-20 sets forth guidelines
for determining the onset date of disability. It
directs that the judgment regarding the onset date
of disability “must have a legitimate medical
basis” and that the ALJ “should call on the
services of a medical advisor when onset must be
inferred.” SSR 83-20. We have explained this
ruling to mean that [i]n the event that the
medical evidence is not definite concerning the
onset date and medical inferences need to be made,
SSR 83-20 requires the [ALJ] to call upon the
services of a medical advisor and to obtain all
evidence which is available to make the
determination.
. . . The onset date of disability is defined
in the ruling as “the first day an individual is
disabled as defined in the Act and the
regulations.” SSR 83-20.
Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (some citations
and quotation marks omitted) (some alterations in original).
In the present case, Plaintiff’s disability onset date
is not clear from the record.

Further proceedings to determine

the proper onset date are necessary prior to any award of
disability benefits.

This Court therefore REMANDS the case for
34

further proceedings consistent with this order and with SSR 8320.
CONCLUSION
On the basis of the foregoing, the Commissioner’s
July 30, 2009 Decision denying Plaintiff social security
disability insurance benefits and supplemental security income,
is HEREBY REVERSED.

The Court FINDS that, on remand, the ALJ

must find that Plaintiff was disabled, for purposes of the Social
Security Act, as of the date of the ALJ Decision.

Further, the

Court REMANDS the instant case to the Social Security
Administration for further proceedings on the following:
1) determination of Plaintiff’s onset date of disability; and
2) determination of Plaintiff’s eligibility for benefits based on
her onset date of disability; and 3) if Plaintiff is eligible for
benefits based on her onset date, calculation of benefits.
Plaintiff’s appeal is HEREBY DENIED in all other
respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 31, 2011.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

35