Flynn v. Berryhill

Filing 17

ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS. Signed by JUDGE ALAN C. KAY on 01/11/2018. The Court REVERSES the Commissioner's decision denying Social Se curity disability benefits and REMANDS to the ALJ for further proceedings consistent with this Opinion. (eps, )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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
ANN MARIE FLYNN,
)
)
Plaintiff,
)
v.
) Civ. No. 17-00151 ACK-KSC
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________)
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL
SECURITY AND REMANDING FOR FURTHER PROCEEDINGS
For the reasons set forth below, the Court REVERSES
the decision of the Commissioner and REMANDS for further
administrative proceedings consistent with this Order.
BACKGROUND
On July 31, 2012, Plaintiff Ann Marie Flynn
(“Plaintiff”) filed an application for Social Security
Disability Insurance (“SSDI”) benefits.

AR 158-59.

alleged disability beginning February 15, 2010.

Plaintiff

AR 12.

The

application was initially denied on February 26, 2013, and upon
reconsideration on January 2, 2014.

Id.

Plaintiff then

requested a hearing before an administrative law judge (“ALJ”),
which was held on May 13, 2015.

Id.

On August 7, 2015, the ALJ

issued his written decision finding Plaintiff not disabled.
23.

On August 17, 2015, Plaintiff filed a request for

rehearing.

AR 7-8.

After the Appeals Council declined to
1

AR

disturb the ALJ’s decision, the ALJ’s decision became the final
decision of the Commission on January 31, 2017.

AR 1-5.1

Plaintiff filed a complaint on April 4, 2017 seeking a
review of the denial of Plaintiff’s applications for SSDI
benefits.

ECF No. 1.

her opening brief.

On September 11, 2017, Plaintiff filed

ECF No. 12 (“Opening Br.”).

Defendant, the

Acting Commissioner of Social Security (“Commissioner”), filed
her answering brief on November 13, 2017.
Br.”).

ECF No. 13 (“Ans.

Plaintiff filed her reply brief on December 11, 2017.

ECF No. 14 (“Reply Br.”).
The Court held a hearing on January 8, 2018 regarding
Plaintiff’s requested review of the Commissioner’s decision.
STANDARD
A district court has jurisdiction pursuant to 42

1

The Court notes that the Commissioner approved Plaintiff
for Supplemental Security Income benefits, which is different
from the Social Security Disability Insurance benefits at issue
here, with a disability onset date of August 17, 2015. Opening
Br. at 1. Plaintiff’s Opening Brief further states:
[T]he issue here is whether [she] was
disabled on or before March 31, 2013, and
thus entitled to SSDI benefits, instead of
SSI . . . there is a difference between SSI
and SSDI programs . . . While [Plaintiff’s]
monthly stipend will be very near the same
monetary amount, SSDI will provide her
Medicare medical insurance through the
federal government . . .
Id. at 1-2.
2

U.S.C. § 405(g) to review final decisions of the Commissioner of
Social Security.2
A final decision by the Commissioner denying Social
Security disability benefits will not be disturbed by the
reviewing district court if it is free of legal error and
supported by substantial evidence.

See 42 U.S.C. § 405(g); Dale

v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016) (reviewing a
district court’s decision de novo).

Even if a decision is

supported by substantial evidence, it “will still be set aside
if the ALJ did not apply proper legal standards.”

See Gutierrez

v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).
In determining the existence of substantial evidence,
the administrative record must be considered as a whole,
weighing the evidence that both supports and detracts from the
Commissioner’s factual conclusions.

See id.

“Substantial

evidence means more than a scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
(internal quotation marks omitted).

Id.

“If the evidence can

reasonably support either affirming or reversing, the reviewing
court may not substitute its judgment for that of the

2

42 U.S.C. § 1383(c)(3) incorporates the judicial review
standards of 42 U.S.C. § 405(g), making them applicable to
claims for supplemental security income.
3

Commissioner.”

Id. (internal quotation marks omitted).

Rather,

courts “leave it to the ALJ to determine credibility, resolve
conflicts in the testimony, and resolve ambiguities in the
record.”

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

1090, 1098 (9th Cir. 2014).
DISCUSSION
“To establish a claimant’s eligibility for disability
benefits under the Social Security Act, it must be shown that:
(a) the claimant suffers from a medically determinable physical
or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous
period of not less than twelve months; and (b) the impairment
renders the claimant incapable of performing the work that the
claimant previously performed and incapable of performing any
other substantial gainful employment that exists in the national
economy.”

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

1999); see 42 U.S.C. § 423(d)(2)(A).

A claimant must satisfy

both requirements in order to qualify as “disabled” under the
Social Security Act.
I.

Tackett, 180 F.3d at 1098.

The SSA’s Five-Step Process for Determining
Disability

The Social Security regulations set forth a five-step
sequential process for determining whether a claimant is
disabled.

Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.

4

2005); see 20 C.F.R. § 404.1520.

“If a claimant is found to be

‘disabled’ or ‘not disabled’ at any step in the sequence, there
is no need to consider subsequent steps.”
1003 (citations omitted in original).

Ukolov, 420 F.3d at

The claimant bears the

burden of proof as to steps one through four, whereas the burden
shifts to the SSA for step five.

Tackett, 180 F.3d at 1098.

At step one the ALJ will consider a claimant’s work
activity, if any.

20 C.F.R. § 404.1520(a)(4)(i).

If the ALJ

finds the claimant is engaged in substantial gainful activity he
will determine that the claimant is not disabled, regardless of
the claimant’s medical condition, age, education, or work
experience.

20 C.F.R. § 404.1520(b).

Substantial gainful

activity is work that is defined as both substantial – i.e. work
activity involving significant physical or mental activities –
and gainful – i.e. work activity done for pay or profit.
C.F.R. § 404.1572.

20

If the ALJ finds that the claimant is not

engaged in substantial gainful activity, the analysis proceeds
to step two.

Tackett, 180 F.3d at 1098.

Step two requires the ALJ to consider the medical
severity of the claimant’s impairments.
(4)(ii).

20 C.F.R. § 404.1520(a)

Only if the claimant has an impairment or combination

of impairments that “significantly limits [his] physical or
mental ability to do basic work activities” will the analysis
proceed to step three.

20 C.F.R. § 404.1520(c).
5

If not, the

ALJ will find the claimant is not disabled and the analysis
stops.

20 C.F.R. § 404.1520(a)(4)(ii).
The severity of the claimant’s impairments is also

considered at step three.

20 C.F.R. § 404.1520(a)(4)(iii).

Here, the ALJ will determine whether the claimant’s impairments
meet or medically equal the criteria of an impairment
specifically described in the regulations.
C.F.R. Part 404, Subpart P, App. 1.

Id.; see also 20

If the impairments do meet

or equal these criteria, the claimant is deemed disabled and the
analysis ends.

20 C.F.R. § 404.1520(a)(4)(iii).

analysis proceeds to step four.

If not, the

20 C.F.R. § 404.1520(e).

Step four first requires the ALJ to determine the
claimant’s residual functional capacity (“RFC”).

Id.

RFC is

defined as the most the claimant can still do in a work setting
despite his physical and mental limitations.
404.1545(a)(1).

20 C.F.R. §

In assessing a claimant’s RFC, the ALJ will

consider all of the relevant evidence in the claimant’s case
record regarding both severe and non-severe impairments.
C.F.R. § 404.1545.

20

This assessment is then used to determine

whether the claimant can still perform his past relevant work.
20 C.F.R. § 404.1520(e).

Past relevant work is defined as “work

that [the claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for
[the claimant] to learn to do it.”
6

20 C.F.R. § 404.1560(b)(1).

The ALJ will find that the claimant is not disabled if he can
still perform his past relevant work, at which point the
analysis will end.

Otherwise, the ALJ moves to step five.

In the fifth and final step, the ALJ will once again
consider the claimant’s RFC, as well as his age, education, and
work experience, in order to determine whether the claimant can
perform other work.

20 C.F.R. § 404.1520(a)(4)(v).

Here, the

Commissioner is responsible for providing “evidence that
demonstrates that other work exists in significant numbers in
the national economy that [the claimant] can do.”
404.1560(c)(2).

20 C.F.R. §

If the claimant is unable to perform other

work, he is deemed disabled; if he can make an adjustment to
other available work, he is considered not disabled.

20 C.F.R.

§ 404.1520(g)(1).
II.

The ALJ’s Analysis

The ALJ found that at step one, Plaintiff had not
engaged in gainful activity since February 15, 2010, the alleged
onset date, through her date last insured of March 31, 2013, and
at step two, that she suffered from the following severe
impairments: cervical spine disc disease, shoulder strain, and
post-traumatic stress disorder.

AR 14-15.

At the third step, the ALJ found that Plaintiff did
not have an impairment or a combination of impairments that met
or medically equaled the severity of an impairment listed in 20
7

C.F.R. Part 404, Subpart P, Appendix 1.

AR 15.

Moving to step four, the ALJ determined that Plaintiff
has the RFC to perform light work, except:
no ladders, ropes or scaffolds; only
occasional ramps or stairs; only occasional
overhead use of the upper extremities;
simple, routine, repetitive type tasks, in a
low stress job environment which is defined
as having only occasional decision making
and only occasional changes in the work
setting; and only occasional interaction
with the public, and occasional interaction
with co-workers.
AR 17.

Based on this RFC, the ALJ determined at step four that

Plaintiff was unable to perform any past relevant work.
22.

AR 21-

Plaintiff agrees that she is unable to perform past

relevant work but argues that the ALJ’s RFC finding improperly
rejected Plaintiff’s testimony as to her limiting symptoms and
Dr. Gregory Park’s medical opinion.

Opening Br. at 10.

Based on the ALJ’s RFC determination, the ALJ
concluded at Step Five that Plaintiff is not disabled because
there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform.
III.

AR 22-23.

Whether the ALJ Improperly Discredited
Plaintiff’s Testimony as to Her Limiting Symptoms

“In assessing the credibility of a claimant’s
testimony regarding subjective pain or the intensity of
symptoms, the ALJ engages in a two-step analysis.”
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
8

Molina v.

The ALJ must first

“determine whether there is objective medical evidence of an
underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged.”
quotation marks and citation omitted).

Id. (internal

“If the claimant has

presented such evidence, and there is no evidence of
malingering, then the ALJ must give specific, clear and
convincing reasons in order to reject the claimant’s testimony
about the severity of the symptoms.”

Id. (internal quotation

marks and citation omitted).
“The ALJ must specifically identify what testimony is
credible and what testimony undermines the claimant’s
complaints.”

Vertigan, 260 F.3d 1044, 1049 (9th Cir. 2011).

“The fact that a claimant’s testimony is not fully corroborated
by the objective medical findings, in and of itself, is not a
clear and convincing reason for rejecting it.”

Id.

In

addition, “[a] finding that a claimant’s testimony is not
credible must be sufficiently specific to allow a reviewing
court to conclude the adjudicator rejected the claimant’s
testimony on permissible grounds and did not arbitrarily
discredit a claimant’s testimony regarding pain.”

Brown-Hunter

v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (internal quotation
marks omitted).
Plaintiff asserts the ALJ improperly rejected her
testimony regarding her limiting symptoms—specifically her
9

testimony that her pain limits how long she can stand and walk
and her testimony that she cannot lift more than ten pounds.
The Court discusses each of these arguments in turn.
i.

Plaintiff’s Testimony that her Pain Limits
the Length of Time She Can Stand and Walk

Plaintiff asserts that the ALJ did not discuss
Plaintiff’s testimony regarding her ability to stand and walk.
Defendant does not address this argument in her Opposition.
At the hearing before the ALJ, Plaintiff testified
that she could stand in one place for an hour before she would
have to sit down or do something else.

AR 42.

Plaintiff also

testified that she could only walk for 20 minutes before she
would have to stop.

Id.

She would then have to sit down and

rest for 10 to 15 minutes.

AR 43.

Plaintiff further testified

that she could not alternate standing for an hour and then
sitting for fifteen minutes to an hour for eight hours.

AR 50.

Plaintiff stated that she would have to lay down during the day
to help with her pain.

AR 51.

Specifically, Plaintiff

testified that if she moved between walking, standing, and
sitting for about an hour to an hour and a half, she would then
have to lie down for at least a half hour.

AR 51.

Plaintiff

further provided written statements articulating the same.

See

AR 197, 200, 202.
The ALJ did not address any of this testimony in his

10

decision.

While the ALJ “is not required to discuss evidence

that is neither significant nor probative,” Howard ex rel. Wolff
v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), an ALJ errs by
improperly ignoring significant and probative record evidence.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (finding
error where the ALJ “improperly ignored or discounted
significant and probative evidence in the record”); see Vincent
ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)
(holding that the ALJ “must explain why significant probative
evidence has been rejected” (internal citation and quotation
omitted)).
The Court finds that Plaintiff’s testimony on the
length of time she can stand and walk to be significant and
probative.

The ALJ determined that Plaintiff was able to

perform light work, which necessarily includes a finding that
Plaintiff would be able to perform a job that required “a good
deal of walking or standing.”

20 C.F.R. § 404.1567(b).

The

ALJ’s finding that Plaintiff can do light work constituted an
implicit rejection of Plaintiff’s testimony.

Because the ALJ

did not discuss this testimony let alone provide any reason for
rejecting it, much less a clear and convincing one, the Court
finds that the ALJ erred.

11

ii.

Plaintiff’s Testimony that She Cannot Lift
More than 10 Pounds

Plaintiff testified in front of the ALJ that she could
not lift more than ten pounds.

AR 42.

The ALJ addressed this

testimony, stating, “She testified that she can only perform
activities lifting up to 10 pounds.

However, she retained full

grip strength through the date last insured, which shows she can
lift more than 10 pounds.”

AR 21.

The Court does not find this reason for rejecting
Plaintiff’s testimony to be convincing.
synonymous with lifting ability.

Grip strength is not

See Bauslaugh v. Astrue, No.

EDCV 09-1853-MLG, 2010 WL 1875800, at *5 (C.D. Cal. May 11,
2010) (“[U]nder the Regulations, the ability to grip and grasp
is not related to the ability to lift and carry.”).

Grip

strength measures the force grip of a hand and “represents the
power of squeezing between the thumb and fingers.”

Chambers v.

Shalala, No. 93 C 6917, 1995 WL 228965, at *2 n. 7 (N.D. Ill.
Apr. 14, 1995).

Lifting involves picking up a load with the

legs, arms, and torso.

Hope v. Astrue, No. ED CV 10-93 PJW,

2011 WL 2135054, at *1 (C.D. Cal. May 31, 2011).

In addition,

lifting and carrying is defined by the Social Security
Regulations as an exertional limitation, while grasping is a
non-exertional limitation.

Bauslaugh, 2010 WL 1875800, at *5.

The Court, therefore, finds that the ALJ erred because he did

12

not present a convincing reason for rejecting Plaintiff’s
testimony that she can only lift up to 10 pounds.
Defendant argues that the ALJ’s rejection of
Plaintiff’s testimony that her pain limits how long she can
stand and walk and that she cannot lift more than ten pounds was
proper because the ALJ found: (1) Plaintiff’s testimony was
inconsistent with the record; (2) medical testimony did not
support Plaintiff’s testimony; (3) Plaintiff’s treatment history
was inconsistent with her specific allegations; (4) Plaintiff’s
work history did not suggest that she was out of work for nonmedical reasons; (5) Plaintiff’s daily activities were
inconsistent with her symptom claims; and (6) Plaintiff’s
testimony conflicted with objective observations from medical
sources.
However, the ALJ did not rely on any of these six
reasons in specifically rejecting Plaintiff’s testimony that her
pain limits how long she can stand and walk and that she cannot
lift more than ten pounds.

The Court cannot affirm the ALJ’s

decision on grounds which the ALJ did not rely.

This Court is

“constrained to review the reasons the ALJ asserts.”

Burrell v.

Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (internal quotation
marks and citation omitted).

Otherwise, “a reviewing court will

be unable to review those reasons meaningfully and without
improperly substituting [its] conclusions for the ALJ’s or
13

speculating as to the grounds for the ALJ’s conclusions.”
Brown-Hunter, 806 F.3d at 492 (internal quotation marks and
alteration omitted); see Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1225 (9th Cir. 2008) (“Long-standing principles of
administrative law require us to review the ALJ’s decision based
on the reasoning and factual findings offered by the ALJ – not
post hoc rationalizations that attempt to intuit what the
adjudicator may have been thinking.”).

Therefore, the Court

cannot consider Defendant’s additional arguments, which the ALJ
did not make himself.
IV.

Whether the ALJ Improperly Rejected Dr. Gregory
Park’s Medical Opinion that Plaintiff Cannot
Carry More than Ten Pounds

Plaintiff argues that the ALJ improperly rejected
consultative examiner Dr. Park’s medical opinion that Plaintiff
cannot carry more than ten pounds.

There must be “clear and

convincing reasons for rejecting the uncontradicted opinion of
an examining physician,” and even if contradicted, the opinion
of an examining doctor “can only be rejected for specific and
legitimate reasons that are supported by substantial evidence in
the record.”

Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.

1995).3

3

Plaintiff argues in her Reply Brief that the Court should
apply the “clear and convincing” standard as opposed to the
“specific and legitimate” standard. For the reasons discussed
(continued . . . )
14

Dr. Park conducted an examination of Plaintiff and
provided his opinions on February 9, 2013.

AR 395.

Based on

his findings that Plaintiff was limited in her shoulder range of
motion and pain in her neck, back, and shoulders, Dr. Park
concluded that Plaintiff could not carry more than 10 pounds.
AR 400.

Specifically, Dr. Park stated, “Lifting and carrying

objects would be a problem, given her problems with the shoulder
range of motion and the pain in the neck and back and shoulders.
She can carry objects up to 10 pounds.”

AR 400.4

The ALJ rejected Dr. Park’s opinion stating:
The limitations on the claimant’s lifting
and carrying are not fully supported by the
examination performed and the medical
evidence of record. In spite of the limited
range of motion secondary to pain, the
claimant took no medications and received no
other treatment for these symptoms. Her
grip strength continues to be normal and her
sensation is intact. That shows the
stenosis observed is not as limiting as
alleged. Therefore, the 10 pound carrying
limitation is too limiting and not fully
supported by the medical evidence of record.
herein, the Court applies the “specific and legitimate”
standard.
4
The Court notes that Dr. Park’s statement regarding
Plaintiff’s ability to lift and carry is not fully clear. Dr.
Park first states that Plaintiff would have problems with both
lifting and carrying. Dr. Park then states that Plaintiff can
carry up to 10 pounds but does not mention whether Plaintiff can
lift up to 10 pounds. Therefore, without a specific finding
from Dr. Park on the amount Plaintiff can lift, the Court only
interprets Dr. Park’s opinion to be in regards to the amount
Plaintiff can carry and not in regards to the amount Plaintiff
can lift.
15

AR 20.
Two other non-examining physicians presented an
opinion that contradicted Dr. Park’s opinion that Plaintiff
could not carry more than ten pounds.

Non-examining physician

Matthew Brynes, D.O. opined that Plaintiff could lift and/or
carry 25 pounds frequently and 50 pounds occasionally.

AR 74.

Non-examining physician P. Blaskowski, M.D. also opined the
same.

AR 91.

Because Dr. Park’s opinion was controverted, the

Court, therefore, must determine whether the following reasons
provided by the ALJ are specific and legitimate: (1) Plaintiff
took no medication; (2) Plaintiff received no treatment for her
symptoms; (3) Plaintiff’s grip strength is normal; and (4)
Plaintiff’s sensation is intact.
these reasons were adequate.

Plaintiff argues that none of

The Court discusses these reasons

in turn.
i.

Whether the ALJ’s reasons—that Plaintiff
took no medication or treatment for her
symptoms—are specific and legitimate and
supported by substantial evidence

The Court finds that even though the ALJ’s reasons for
rejecting Dr. Park’s opinion—that Plaintiff did not take
medication and received no treatment for her symptoms—are
specific and supported by substantial evidence, they are not
legitimate.

Plaintiff testified that she did not take pain

medications, AR 51-52, and Plaintiff’s treating doctors declined

16

to prescribe her pain medication in May 2010 and September 2013.
AR 344, 469.

In using this fact as a basis for rejecting Dr.

Park’s testimony, however, the ALJ implicitly rejected
Plaintiff’s testimony that she could not take pain medicine
because she had side effects.

See AR 41 (“I can’t remember the

last time I took pain medicine.”); AR 51 (“They don’t agree with
me.

I don’t like how [pain killers] make me feel.”); AR 52 (“I

had a really bad affect with drugs . . . all drugs . . . I don’t
like how they make me feel.”); see also AR 396 (“They treated
her with Vicodin temporarily, but she stopped taking Vicodin,
because it was an addicting medicine.
medications for her pain.”).5

She does not take any

If the ALJ was going to reject

this testimony, he needed to provide clear and convincing
reasons for doing so.
reasons.

The ALJ, however, did not provide any

The Court finds that this was error.
The Court further finds that these reasons are not

legitimate because there is no evidence in the record to support
the ALJ’s opinion that the fact Plaintiff did not take
5

Courts have found that side effects are a sufficient
reason for not taking medication. See, e.g., Smolen v. Chater,
80 F.3d 1273, 1284 (9th Cir. 1996) (“Where a claimant provides
evidence of a good reason for not taking medication for her
symptoms, her symptom testimony cannot be rejected for not doing
so . . . Thus, the fact that Smolen was not taking medication is
not a clear and convincing reason for discrediting her symptom
testimony.”); Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.
1984) (noting that side effects are a sufficient reason not to
take pain medication).
17

medication for her pain or receive treatment for her symptoms
demonstrates that she was capable of carrying more than 10
pounds.

In addition, these reasons do not legitimately explain

why the ALJ rejected Dr. Park’s opinion that Plaintiff is only
capable of carrying up to 10 pounds in favor of his own opinion
that Plaintiff could lift and carry up to 20 pounds—an opinion
that was not held by the doctors in the record.6
Defendant argues that because treating physicians
declined to give Plaintiff pain medication when she requested
it, her testimony regarding side effects from pain medication
can be discredited.

Again, Defendant discusses her own reason

for why the ALJ should have rejected Plaintiff’s testimony and
not the reasons discussed by the ALJ—of which there were none.
The Court cannot affirm the ALJ’s decision on grounds which the
ALJ did not rely.

Accordingly, the Court finds that the ALJ’s

reasons that Plaintiff took no medication for her back pain and
received no treatment for her symptoms to not be legitimate to
reject Dr. Park’s opinion.

6

The Court notes, as previously discussed, that Dr. Park
opined that Plaintiff could not carry more than 10 pounds. Two
non-examining physicians opined that Plaintiff could lift and/or
carry 25 pounds frequently and 50 pounds occasionally.
18

ii.

Whether the ALJ’s reason—that Plaintiff’s
grip strength is normal—is specific and
legitimate and supported by substantial
evidence

The Court finds that even though the ALJ’s reason for
rejecting Dr. Park’s opinion—that Plaintiff’s grip strength is
normal—is specific and supported by substantial evidence, it is
not legitimate.
strength.

Dr. Park found that Plaintiff has normal grip

AR 399.

However, as previously discussed, grip

strength is not synonymous with lifting and carrying
ability.

The Court, therefore, finds that this reason for

rejecting Dr. Park’s opinion that Plaintiff could not carry more
than ten pounds is not legitimate.
iii.

Whether the ALJ’s reason—that Plaintiff’s
sensation is intact—is specific and
legitimate and supported by substantial
evidence

The Court finds that although the ALJ’s reason for
rejecting Dr. Park’s opinion—that Plaintiff’s sensation is
intact—is specific and supported by substantial evidence, it is
not legitimate.

Dr. Park’s medical opinion states under a

neurological evaluation section, “Sensory is intact.”

AR 399.

The Court finds that this is not a legitimate reason for the ALJ
to reject Dr. Park’s opinion that Plaintiff cannot carry more
than 10 pounds.
Plaintiff’s neurological sensory capacity is not the
same as Plaintiff’s lifting ability; Plaintiff may be able to
19

feel an item when she touches it but not be able to lift or
carry it due to pain and the range of motion of her shoulder.
In addition, lifting and carrying is defined by the Social
Security Regulations as an exertional limitation whereas sensory
ability is a non-exertional limitation.

See Hamilton v. Astrue,

No. EDCV 08-1843-MAN, 2010 WL 3748744, at *12 n.11 (C.D. Cal.
Sept. 22, 2010); Carter v. Barnhart, No. C03-1518 CRB, 2003 WL
22749253, at *4 n.2-3 (N.D. Cal. Nov. 14, 2003).

The Court,

therefore, finds that this reason for rejecting Dr. Park’s
opinion that Plaintiff could not carry more than 10 pounds is
not legitimate.
In sum, the Court finds that the ALJ erred by failing
to provide legitimate reasons for rejecting Dr. Park’s opinion
that Plaintiff could not carry more than 10 pounds.
V.

Harmless Error & Remand

The errors at issue were not harmless.

“An error is

harmless only if it is inconsequential to the ultimate nondisability determination . . . or if despite the legal error,
the agency’s path may reasonably be discerned.”

Brown-Hunter,

806 F.3d at 494 (internal quotation marks and citation omitted)
(finding that because the ALJ did not provide any reasons upon
which her conclusion was based, the agency’s path could not be
reasonably discerned).

The Ninth Circuit has indicated that in

order to consider an error harmless, the reviewing court must be
20

able to “confidently conclude that no reasonable ALJ, when fully
crediting the testimony, could have reached a different
disability determination.”

Marsh, 792 F.3d at 1173.

Had the ALJ properly considered Plaintiff’s testimony
regarding the length of time she can stand and walk and that she
cannot lift more than 10 pounds, and Dr. Park’s opinion that
Plaintiff could not carry more than 10 pounds, the ALJ might
have given a more restrictive RFC than the one given in her
decision.

That, in turn, might have led to a finding that

Plaintiff is disabled.

In light of these errors, this Court

cannot confidently conclude that no reasonable ALJ would reach a
different decision.

Accordingly, the ALJ’s errors were not

harmless and her decision must be reversed.7

7

Defendant argues that the ALJ’s evaluation of Dr. Park’s
opinion was harmless because he would have made the same finding
in regards to Plaintiff’s disability at step five even if he had
agreed with Dr. Park’s opinion that Plaintiff could not carry
more than 10 pounds. Specifically, Defendant argues that the
jobs that the ALJ found Plaintiff would be able to perform—
cleaner housekeeper, photocopy machine operator, and can-filling
and closing tender—only require Plaintiff to lift 10 pounds,
according to the vocational expert who testified before the ALJ.
AR 23, 62-63.
The Court, however, does not find this argument persuasive
because the Dictionary of Occupational Titles characterizes
these positions as requiring occasional lifting of up to twenty
pounds. See 323.687-014 Cleaner, Housekeeper, Dictionary of
Occupational Titles (“DICOT”), 1991 WL 672783 (“Light Work exerting up to 20 pounds of force occasionally”); 529.685-282
Can-Filling-and-Closing-Machine Tender, DICOT, 1991 WL 674715
(“Light Work - exerting up to 20 pounds of force
occasionally”); 207.685-014 Photocopying-Machine Operator,
(continued . . . )
21

“Remand for further administrative proceedings is
appropriate if enhancement of the record would be useful.”
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
However, where the record is fully developed and “further
administrative proceedings would serve no useful purpose,” a
court should remand for an immediate award of benefits.

Id.

“The decision whether to remand for further proceedings or
simply to award benefits is within the discretion of [the]
court.”
1989).

McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.
However, the Ninth Circuit has cautioned that “[a]

remand for an immediate award of benefits is appropriate . . .
only in rare circumstances.”

Brown-Hunter, 806 F.3d at 495

(internal quotation marks omitted).
In this case, the Court finds that enhancement of the
record would be useful.

The Court, therefore, holds that remand

for further proceedings is appropriate for the ALJ to properly
consider Plaintiff’s testimony and the opinion of Plaintiff’s
examining physician, Dr. Park.

The ALJ is instructed to take

whatever further action is deemed appropriate and consistent
DICOT, 1991 WL 671745 (“Light Work - exerting up to 20 pounds
of force occasionally”). The DICOT is “the Secretary’s primary
source of reliable job information.” Johnson v. Shalala, 60
F.3d 1428, 1434 (9th Cir. 1995).
The Court, therefore, cannot confidently conclude that no
reasonable ALJ would reach a different decision and finds that
the ALJ’s errors when rejecting Dr. Park’s opinion were not
harmless.
22

with this decision.
CONCLUSION
For the foregoing reasons, the Court REVERSES the
Commissioner’s decision denying Social Security disability
benefits and REMANDS to the ALJ for further proceedings
consistent with this Opinion.8
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 11, 2018

________________________________
Alan C. Kay
Sr. United States District Judge

Flynn v. Berryhill, Civ. No. 17-00151 ACK-KSC, Order Reversing the Decision
of the Commissioner of Social Security and Remanding for Further Proceedings.

8

Plaintiff has requested for the Court to award attorneys’
fees and costs pursuant to 28 U.S.C. § 2412. Opening Br. at 23.
The Court finds Plaintiff to be the prevailing party and
therefore entitled to attorneys’ fees and costs. Plaintiff may
file a separate motion requesting such fees and costs and
providing support for such relief before the Magistrate Judge,
and Defendant will have the opportunity to object to such
request.
23