Johns, Jr. v. Berryhill

Filing 19

ORDER REVERSING DECISION OF ACTING COMMISSIONER OF SOCIAL SECURITY AND REMANDING ACTION FOR FURTHER PROCEEDINGS "For the foregoing reasons, the court REVERSES the ALJ's February 10, 2017 decision and REMANDS the action to the ALJ. The clerk of court shall close the case file." Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 4/2/2019 (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

JAMES V. JOHNS, JR.,

Civ. No. 18-00126 JMS-RLP

Plaintiff,

ORDER REVERSING DECISION OF
ACTING COMMISSIONER OF
SOCIAL SECURITY AND
REMANDING ACTION FOR
FURTHER PROCEEDINGS

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

ORDER REVERSING DECISION OF ACTING COMMISSIONER OF
SOCIAL SECURITY AND REMANDING ACTION FOR FURTHER
PROCEEDINGS
I. INTRODUCTION
Plaintiff James Johns, Jr. (“Plaintiff” or “Johns”) seeks review under
42 U.S.C. § 405(g) of Acting Commissioner of Social Security Nancy A.
Berryhill’s (“the Commissioner”) denial of Plaintiff’s application for supplemental
security income benefits under Title XVI of the Social Security Act.
The Administrative Law Judge’s (“ALJ”) February 10, 2017 decision
is deficient in a key area. It fails to properly “specifically identify” and discuss
Plaintiff’s pain and symptom testimony which the ALJ apparently rejected in
finding Plaintiff not disabled. See, e.g., Treichler v. Comm’r of Soc. Sec. Admin.,

1

775 F.3d 1090, 1102 (9th Cir. 2014) (“[W]e require the ALJ to specifically identify
the testimony from a claimant she or he finds not credible and explain what
evidence undermines the testimony.”) (citation and internal quotation marks
omitted). Indeed, the ALJ’s decision contains an apparently incomplete sentence,
and thus thoughts appear to be missing where the decision starts to discuss
Plaintiff’s pain and symptom testimony. See Administrative Record (“AR”) at 25.1
The decision is incomplete — and the omission means the court cannot
meaningfully review the determination that Plaintiff is disabled. See, e.g., BrownHunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (explaining that the ALJ must
specifically identify testimony to assure the ALJ “rejected the claimant’s testimony
on permissible grounds and did not arbitrarily discredit a claimant’s testimony
regarding pain”). For this reason, as explained in more detail to follow, the court
REVERSES the ALJ’s February 10, 2017 Decision and REMANDS the action to
the ALJ.2
II. BACKGROUND
Plaintiff was born in August 1987, and was 29-years old when the
ALJ issued her February 10, 2017 decision. See, e.g., AR at 97. Plaintiff twice

1

The AR is numbered sequentially from pages 1 to 970, and is available at ECF Nos. 121 to 12-10.
2

Under Local Rule 7.2(d), the matter is suitable for decision without an oral hearing.
See ECF No. 18.
2

previously applied for disability and supplemental security income benefits under
Titles II and XIV of the Social Security Act, alleging a disability onset date of May
1, 2005. Id. at 16. His August 2006 and May 2010 applications were denied in
2007 and 2011 respectively. Id. at 15. Although those applications were denied,
some of the medical information from those prior years is relevant, and was
discussed by the ALJ in the current proceeding. The parties agree, however, that
the current action is limited to a July 16, 2014 application under Title XIV, seeking
supplemental security income benefits beginning on that date. See Pl.’s Opening
Br. at 1, ECF No. 14 at 5; Def.’s Answering Br. at 1-2, ECF No. 15 at 7-8.
The Social Security Administration disapproved Plaintiff’s July 16,
2014 application on February 12, 2015, AR at 143, and denied reconsideration on
June 1, 2015, AR at 154. On July 19, 2016, an ALJ held a hearing in Hilo, Hawaii,
on Plaintiff’s challenge to that denial. See AR at 38 to 90. After the ALJ’s
February 10, 2017 decision, and after the Appeals Council denied review on
February 1, 2018, Plaintiff filed this action on April 2, 2018, seeking judicial
review. ECF No. 1.
This court’s decision ultimately turns on a relatively narrow issue
regarding the ALJ’s consideration of Plaintiff’s testimony. The court thus does not
set forth all the administrative record’s details of Plaintiff’s medical history, which
dates back to at least 2005. The ALJ, however, found that Plaintiff “has the
3

following severe impairment[s]: obesity; lumbar spine degenerative disc disease,
status post left laminectomy and discectomy in February 2011; intermittent
explosive disorder[;] and . . . adjustment disorder.” AR at 18.
Specifically, the ALJ found that, “from the May 1, 2005 alleged onset
date of disability through [February 10, 2017], the claimant has . . . limitations in
the current four broad areas of mental functioning . . . [and that] the claimant’s
mental impairments are severe pursuant to [20 C.F.R. § 404.1520a and 20 C.F.R.
§ 416.920a].” Id. at 21. But, although diagnoses in the record reflected a
substance addiction disorder, she found his drug and alcohol abuse was “not
severe.” Id. As for physical impairments, she concluded that Plaintiff has “severe
physical impairments as of October 2010.” Id. at 22. Based on (1) an October 5,
2010 magnetic resonance image; (2) February 2011 laminectomy and discectomy
surgery; (3) August and November 2014 progress notes; and (4) May 2015
electrodiagnostic testing, she found that Plaintiff “has had a severe lumbar spine
impairment through [February 10, 2017.]” Id. She also found he was clinically
obese at a severe level, although his carpal tunnel syndrome was not severe. Id.3

3

In her Opposition, the Commissioner “stipulate[d] that the ALJ fairly and accurately
summarized the material medical and non-medical evidence of record.” Answering Br. at 4,
ECF No. 15 at 10.
4

Given those classifications, the ALJ then assessed Plaintiff’s residual
functional capacity (“RFC”), as follows:
[Plaintiff] can lift and/or carry 20 pounds occasionally
and 10 pounds frequently, he can sit 6 hours out of an 8hour day, and he can stand and/or walk 6 hours out of an
8-hour day (i.e., light exertional-level work as defined in
20 CFR 404.1567(b), 20 CFR 416.967(b), and SSR 8310)); he can occasionally stoop, kneel, crawl, and crouch;
he can occasionally climb ramps and stairs (but he can
never climb ladders, ropes, or scaffolds); he can
understand, remember, and carry out simple
instructions (defined as unskilled Specific Vocational
Preparation (“SVP”) 1 and 2 work); he can maintain
attention, persistence, and pace without restriction; he
can respond appropriately to co-workers and supervisors,
and; he can frequently interact with the general public
(20 CFR 404.1520(e); 20 CFR 416.920(e)).
AR at 24.
Considering that RFC and other relevant factors — Plaintiff’s age
(“younger individual age 18-49”), education (11th grade), and work experience (no
substantial gainful activity during the past 15 years), id. at 28 — the ALJ then
assessed whether Plaintiff could perform jobs that exist in significant numbers in
the national economy. After considering testimony of a vocational expert (“VE”),
the ALJ determined that Plaintiff could perform “the requirements of
representative occupations” such as a cashier, sales attendant, and a cafeteria
attendant. Id. at 28-29.

5

Alternatively, the ALJ considered VE testimony that found Plaintiff
could perform a significant numbers of jobs even assuming Plaintiff had further
limitations. Specifically, the ALJ gave the VE the following hypothetical:
[A]ssume an individual of the same age, education and
vocational background as the claimant with the
limitations identified [previously], with the following
changes: that such an individual would need to alternate
positions between sitting and standing at 45-minute
intervals for one to five minutes at the workstation.
Id. at 85. The VE asked “during that one to five minutes at a time, is the person
on-task or off-task?” and the ALJ clarified that “[t]hey are on-task because they’re
at the workstation.” Id. at 86. The VE then indicated that such a person could
perform certain types of cashier jobs, or be a ticket seller or document preparer.
Id. at 86-87. The ALJ accepted that opinion, and found Plaintiff is “not disabled”
for purposes of the Social Security Act. Id. at 29.
During the hearing, the ALJ had also asked the VE to assume an
individual with Plaintiff’s specific limitations “were off-task for five percent of the
workday due to distractions from psychologically-based symptoms.” Id. at 87.
The VE testified that “[a]t five percent . . . employment still could be maintained.”
Id. Plaintiff’s counsel then asked the VE — combining all aspects of the previous
hypotheticals — whether a person would still be able to work if they “were offtask more than 20 percent of the time.” Id. The VE testified that 20 percent

6

“would preclude employment; that’s too much time off-task.” Id. at 88-89. She
explained that such a limitation would preclude “all employment.” Id. at 89.
Accepting that latter opinion by the VE, it would ultimately be
dispositive if Plaintiff in fact has such a limitation (i.e., being “off-task” more than
20 percent of the time). It thus becomes important for this review whether the ALJ
specifically considered (and properly rejected) Plaintiff’s pain and symptom
testimony as it relates to the amount of time he is “off task.” And Plaintiff
contends that his pain and symptom testimony did indeed establish such a
relationship, and that the court should remand for such consideration. The court’s
analysis focuses on that question.
III. STANDARD OF REVIEW
A claimant is “disabled” for purposes of the Social Security Act if he
or she is unable to “engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment 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); see 42 U.S.C. § 1382c(a)(3)(A); Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005).
A district court affirms a Commissioner’s decision if it is based on
proper legal standards and the findings are supported by substantial evidence on
the record as a whole. See 42 U.S.C. § 405(g); Andrews v. Shalala, 53 F.3d 1035,
7

1039 (9th Cir. 1995). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Tylitzki v. Shalala, 999 F.2d 1411,
1413 (9th Cir. 1993).
IV. ANALYSIS
A.

Legal Standards
1.

Disability Determinations
Social Security Administration regulations establish the analysis to

determine when a person is “disabled” under the Social Security Act, 20 C.F.R.
§ 404.1520; 42 U.S.C. § 423. A familiar five-step sequential evaluation process
applies:
(1) Has the claimant been engaged in substantial gainful
activity? If so, the claimant is not disabled. If not,
proceed to step two.
(2) Has the claimant’s alleged impairment been
sufficiently severe to limit his ability to work? If not, the
claimant is not disabled. If so, proceed to step three.
(3) Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, the
claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional
capacity to perform his past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.

8

(5) Does the claimant’s residual functional capacity,
when considered with the claimant’s age, education, and
work experience, allow him to adjust to other work that
exists in significant numbers in the national economy? If
so, the claimant is not disabled. If not, the claimant is
disabled.
See, e.g., Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
(citing 20 C.F.R. § 404.1520).
The claimant has the burden of proof at steps one through four; the
Commissioner has the burden at step five. See, e.g., Bustamante v. Massanari, 262
F.3d 949, 953-54 (9th Cir. 2001). At steps four and five, the ALJ may consider
testimony from an impartial VE to determine whether an applicant can perform his
or her past work, or to determine whether he or she can perform other jobs in the
national economy. See, e.g., Wagner v. Astrue, 499 F.3d 842, 854 (8th Cir. 2007)
(“[T]he ALJ may rely on the testimony of a vocational expert in making the
necessary findings at step four”) (citations omitted); Roberts v. Shalala, 66 F.3d
179, 184 (9th Cir. 1995) (“The [Commissioner] can meet this burden [at step five]
by propounding to a vocational expert a hypothetical that reflects all the claimant’s
limitations.”).
2.

Evaluating Subjective Symptom and Pain Testimony
Courts “leave it to the ALJ to determine credibility, resolve conflicts

in the testimony, and resolve ambiguities in the record.” Brown-Hunter, 806 F.3d

9

at 492 (quoting Treichler, 775 F.3d at 1098). “The ALJ must make two findings
before the ALJ can find a claimant’s pain or symptom testimony not credible.”
Treichler, 775 F.3d at 1102 (citing 42 U.S.C. § 423(d)(5)(A)).
“First, the ALJ must determine whether the claimant has presented
objective medical evidence of an underlying impairment ‘which could reasonably
be expected to produce the pain or other symptoms alleged.’” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d
341, 344 (9th Cir. 1991)).
“Second, if the claimant has produced that evidence, and the ALJ has
not determined that the claimant is malingering, the ALJ must provide ‘specific,
clear and convincing reasons for’ rejecting the claimant’s testimony regarding the
severity of the claimant’s symptoms.” Treichler, 775 F.3d at 1102 (quoting
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “This is not an easy
requirement to meet: The clear and convincing standard is the most demanding
required in Social Security cases.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)).
Further, “an ALJ does not provide specific, clear, and convincing
reasons for rejecting a claimant’s testimony by simply reciting the medical
evidence in support of his or her residual functional capacity determination.”
Brown-Hunter, 80 F.3d at 489. “To ensure that [a court’s] review of the ALJ’s
10

credibility determination is meaningful, and that the claimant’s testimony is not
rejected arbitrarily, [courts] require the ALJ to specify which testimony she finds
not credible, and then provide clear and convincing reasons, supported by evidence
in the record, to support that credibility determination.” Id. “[T]he ALJ must
identify what testimony is not credible and what evidence undermines the
claimant’s complaints.” Id. at 493 (quoting Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998)); see also, e.g., Treichler, 775 F.3d at 1102 (“[W]e require the ALJ
to ‘specifically identify the testimony from a claimant she or he finds not to be
credible . . . .’”) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir.
2001) (internal editorial marks omitted)). The requirement enables a court to
assess whether the ALJ “rejected the claimant’s testimony on permissible grounds
and did not arbitrarily discredit a claimant’s testimony regarding pain.” BrownHunter, 806 F.3d at 493 (quoting Bunnell, 947 F.2d at 345-46).
B.

Application of Legal Standards
Both sides agree with the ALJ’s analysis at the first four steps of the

analysis. First, Plaintiff has not been engaged in “substantial gainful activity.” AR
at 18. Second, he has impairments, both mental and physical, that are sufficiently
severe to limit his ability to work. Id. at 18-22. Third, his combination of
impairments does not meet or equal those “listed in 20 C.F.R. Part 404, Subpart P,

11

Appendix 1.” Id. at 22-24. And because Plaintiff has no “past relevant work,” step
four does not apply.
Rather, the dispute concerns only step five — whether Plaintiff can
adjust to work that exists in significant numbers in the national economy,
considering Plaintiff’s RFC, along with his age, education, and experience. More
specifically, as explained above, the question is whether the ALJ properly
considered and explained her reasons for rejecting Plaintiff’s subjective pain and
symptom testimony as it relates to the ALJ’s determination of Plaintiff’s RFC and
the amount of time he can be “on task.”
1.

Plaintiff’s testimony of disabling pain and symptoms
Plaintiff points to evidence and his extensive testimony in the record

regarding his ability to sit, stand, and walk in an eight-hour day. For example, he
cites a February 2015 assessment from Dr. Daniel Belcher that — although it
opined that Plaintiff should be able to do light to sedentary activity — recognized
that Plaintiff could only “walk two or three blocks, sit for half-an-hour, stand for
15 to 20 minutes, [and] lift 20 pounds.” Id. at 807.
Thus, although the administrative hearing covered several areas, the
court focuses on Plaintiff’s testimony regarding his alleged inability to sit or stand
or “remain on task” for significant periods of time. At the hearing, Plaintiff was
asked about how long he uses a computer and plays video games, and he answered
12

“Not very long. Sometimes an hour, because I got to keep standing up and sitting
down, so I do get frustrated.” Id. at 53. When the ALJ asked about specific
problems that prevent him from working, he testified as follows:
A.

I have a difficulty sitting for a very long time. If I try to
cope with it, you know, I end up sweating real hard
because I’m trying to push through the pain. I need to
stand up a lot and as standing up, I — sometimes I need
to pace and everything so I can take my mind off the
pain. And then I got to sit a lot, so I’m roughly having
trouble with standing a lot, sitting a lot.

Q.

How long are you able to sit at one time before you feel
like you have to —

A.
Roughly a half hour.
....
Q.
And so you can sit for about a half hour and then what do
you need to do?
A.

Then I need to stand. And depending on how — if the
pain is throbbing or if it’s just a sharp one at the moment,
if it’s throbbing, I’ve got to pace. I have to pace to take
my mind off it.

Q.

For how long?

A.

Roughly five or 10 minutes, depending on how it is.

Q.

Just standing up and changing position, will that help
relieve the pain?

A.

Yes. If I shuffle, depending on which side hurts, mostly
it’s my left side, so I try to lean to the right or sometimes
even just putting pressure on the side that hurts relieves
it.

13

Q.

Well, how far are you able to walk at one time?

A.

I’d say not 100 percent sure, probably about 1,000 feet,
1,500.

Id. at 55-56. Later, the following exchange occurred regarding Plaintiff’s ability to
ride the bus:
Q. [ALJ]: And by the way, how did you get to the hearing
today?
A.

I took the bus in the morning. . . .

Q.

Okay. And how long did it take you to get here?

A.

Roughly a couple hours.

Q.

Did you experience any difficulty on the ride here?

A.

I always do; I have to stand up on the bus.

Id. at 61.
Q. [Counsel] Okay. . . . You talked about the bus trip.
Describe that a little more in detail for me? On a twohour bus trip like from this morning, how many times did
you — you sit someplace in the bus so you can stand up?
A.

They got two different kinds of busses: they got a bigger
bus that has — in the front they have seats that go
sideways, and then they start going in [a] row. Normally,
I sit in the front seat there because then I can just stand
straight up. Normally the bus driver understands, so I
can just stand up and then sit back down in place.
If they use the older busses, they don’t have seats
that go sideways, they’re all just rowed in, but in the
middle of the row in the back, in the aisle, they have a
14

middle seat, so normally I try to sit there to where it
doesn’t look inconspicuous to where I got to stand up all
the time. Because sometimes people, they try to get me
to sit in the window seat but I tell them I cannot because I
got to stand up. So I’ll try to take an aisle seat and I’ll
either lift or rest and step out, stand and then step back in.
Q.

Now, we’ve been here this morning about 30 to 35
minutes and you’ve stood up twice, is that correct?

A.

Yes.

Q.

Okay, so in the course of a bus trip, how many times do
you stand up and sit down in your two-hour trip?

A.

Roughly six or seven times, depending on how fast I had
to walk. If I got there — if I could just take leisure time,
normally I try to get to the bus stop between 15 and 20
minutes early because then I can just sit that whole time
and I won’t have to stand up on the bus right away.

Q.

So six or seven times on a two-hour bus trip is not
unusual.

A.

No.

Q.

Okay. And that’s every bus trip?

A.

Yes.

Id. at 64-65. Plaintiff testified similarly regarding activity at night:
Q. [Counsel] Do you have to get up during the night because
of your back?
A.

Yes.

Q.

How many times do you have to get up during the night?

15

A.

On a good night, probably two times.

Q.

Okay. What do you have to do when you get up?

A.

Depending, I either try to sit on the — pull my legs out,
sit on the side of the bed or I have to get up and pace or I
normally try to walk to get something to drink and then
come back. And I got a fold out chair I sit in because
then I can sit straight up and down.

Q.

So how long does this activity take before you can go
back to sleep? 10 minutes, 20 minutes?

A.

Roughly a half hour.

Q.

Okay. So twice a night you wake up and you have to
take at least a half an hour out of bed to stop the pain or
reduce the pain so you can go back to sleep?

A.

Yes.

Id. at 68-69. Similarly, he testified as follows about when he reads:
Q. [ALJ] . . . How long are you able to read at one time before
you have to get up and, you know, are you walking
around with the book? . . .
A.

Normally — well, I can’t — I don’t read very fast, so I
would say maybe two or three pages, and then I have to
get up and move and do something. That’s why I don’t,
like, even with video games, I can’t focus very long
because even if I sit, I got to get up, and getting up
interrupts the motion that I’m in. I got to see from a
different height. Like, even the same with reading:
sometimes I — I even try to walk when I read, but I do
wear reading glasses, which kind of — my vision, I can’t
see with them far away, so there’s that issue. But I do try
to read, but I do have to get up.

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Id. at 82.
2.

The ALJ’s Insufficient Apparent Rejection of Plaintiff’s Testimony
Although it is not clear, the ALJ apparently rejected this symptom and

pain testimony in the February 10, 2017 decision. In this regard, page 11 of the
decision provides:
The claimant stated that he [sic] pain with extended
walking, his back pain made it difficult to sit or stand and
walk, he required 2-3 hour naps, and his mental problems
did not allow him to cope in a normal work environment,
and he did not handle stress or changes in routine well
(Exhibits 6E; 7E; 11E; 16E; 23E). The claimant testified
that it was hard to sit long, he could only walk half a
block without resting, he had a back brace and used a
transcutaneous electrical nerve stimulation unit for back
pain relief,
Id. at 24-25 (emphasis added). The emphasized clause ends with a comma — it is
an apparently incomplete sentence and unfinished thought. There is no other
mention of Plaintiff’s symptom testimony regarding the ability, or lack thereof, to
“remain on task” in the decision (other than a reference to riding the bus taken out
of context as explained to follow). The decision does not mention his testimony
indicating that his need to change positions affects his ability to focus and remain
on task. See, e.g., id. at 55 (“I need to stand up a lot and as standing up, I —
sometimes I need to pace and everything so I can take my mind off the pain.”); id.
at 56 (“And depending on how — if the pain is throbbing or if it’s just a sharp one

17

at the moment, if it’s throbbing, I’ve got to pace. I have to pace to take my mind
off it.”); id. at 82 (“I don’t read very fast, I would say maybe two or three pages,
and then I have to get up and move and do something. That’s why I don’t, like,
even with video games, I can’t focus very long because even if I sit, I got to get up,
and getting up interrupts the motion that I’m in.”).
The ALJ nevertheless explains why she believes that Plaintiff’s
functional limitations are “not as significant as alleged,” and “his activities of daily
living are not consistent with his allegations of disabling pain and symptoms . . . ,”
id. at 25, as follows:
The claimant also stated that he loved to read (Exhibit
16E/3), however, which indicates that his mental
functional limitations are not as significant as alleged,
and he can perform simple, repetitive tasks. . . . The
claimant and his stepmother also stated that he had no
problems performing personal care activities, he could
sweep and wash dishes, he could go grocery shopping, he
usually did not have difficulty finishing housework, he
could make quick and easy meals, and he could shop in
stores (Exhibits 6E; 7E; 1 lE; 16E; 23E). The claimant
testified that he fixed meals and could shower without
assistance, his personal hygiene was okay, he could [sic]
for groceries once a month, he could sweep and vacuum
as well as do dishes, he could take care of laundry, he
could read long books, he could travel 23 miles for 1 to 2
hours on the bus to go to class, and he also rode the bus
to the hearing, and stood on the bus several times. The
claimant does not have to be utterly incapacitated in
order to be disabled, but his activities of daily living are
not consistent with his allegations of disabling pain and
symptoms, and they do not justify additional
18

functional limitations beyond those adopted above.
Id. (emphasis added).
Given those parts of the ALJ’s decision, the court must remand the
matter to the ALJ for two reasons. First, the incomplete sentence (or paragraph)
and incomplete thought provides very little basis for the court to know whether the
ALJ even considered what Plaintiff asserts is dispositive testimony — testimony
about his inability to remain on task.4 And it is potentially consequential
testimony: if the ALJ had found Plaintiff unable to remain on task for 20 percent of
a work day — as the VE testified — then he would have been unemployable. See
AR at 88-89; Popa v. Berryhill, 872 F.3d 901, 908 (9th Cir. 2017) (accepting VE
testimony that “‘if the person is off task six minutes out of every hour,’ she could
not perform work that exists in significant numbers in the national economy
because the person ‘would not be competitively employable.’”). 5
The ALJ might have discredited his pain and symptom testimony
because she thought he was exaggerating symptoms, or found that the testimony

4

And even if the ALJ simply intended to end the sentence with a period, the analysis
would still be insufficient to meet legal standards.
5

The court thus disagrees with the Commissioner’s argument that any error was
harmless. See Brown-Hunter, 806 F.3d at 494 (“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.”) (citations and quotation marks omitted).

19

did not establish that he would be off task for a necessary amount of time, or
concluded that the testimony was unrelated to his ability to focus. But because the
ALJ did not even mention the testimony (or, at best, only partially mentioned it)
the court must speculate. That is, the ALJ failed to “specifically identify the
testimony” she discredited. See Brown-Hunter, 806 F.3d at 493 (“‘General
findings are insufficient; rather the ALJ must identify what testimony is not
credible and what evidence undermines the claimant’s complaints.’”) (quoting
Reddick, 157 F.3d at 722). “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.’” Id. (quoting Bunnell,
947 F.2d at 345-46).6 And the court cannot speculate. Treichler, 775 F.3d at 1103
(reiterating that “we cannot . . . speculate as to the grounds for the ALJ’s
conclusions”) (citation omitted).
Second, the emphasized clause from the ALJ’s reasoning regarding
Plaintiff’s bus trips (“he could travel 23 miles for 1 to 2 hours on the bus to go to

6

The parties do not otherwise dispute either step of the two-step framework to evaluate
Plaintiff’s pain and symptom testimony. See, e.g., Treichler, 775 F.3d at 1102. That is, Plaintiff
“has presented objective medical evidence of an underlying impairment which could reasonably
be expected to produce the pain or symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (citation
and quotation marks omitted). And “the ALJ has not determined that the claimant is
malingering.” Treichler, 775 F.3d at 1102. Thus, “the ALJ must provide ‘specific, clear and
convincing reasons for’ rejecting the claimant’s testimony . . . .” Id.
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class, and he also rode the bus to the hearing, and stood on the bus several times,”
AR at 25) is confusing and appears to be taken out of context. The ALJ cites
Plaintiff’s bus riding as if it helps prove that he was not disabled; but the extensive
testimony completely supports his claim as he explained his difficulties when
riding and how he must alternate between sitting and standing six or seven times
on his normal trip. In short, the court is not confident that the ALJ properly
considered this specific testimony, especially where the Commissioner has the
burden at step five, and must provide “clear and convincing” reasons for rejecting
Plaintiff’s pain and symptom testimony. See, e.g., Trevizo, 871 F.3d at 678.
The ALJ might be able to properly explain her reasons for rejecting
Plaintiff’s testimony. Indeed, she might have intended to do so where the decision
is apparently missing thoughts or explanation, i.e., after the incomplete sentence on
page 11 of the decision. See AR at 25. And if so, Plaintiff might in fact not be
“disabled” for purposes of social security benefits. But, again, the court cannot
speculate; instead, the court must remand. See, e.g., Brown-Hunter, 806 F.3d at
495 (“‘[W]e cannot substitute our conclusions for the ALJ’s or speculate as to the
grounds for the ALJ’s conclusions.’”) (quoting Treichler, 775 F.3d at 1103);
Bunnell, 947 F.2d at 346 (“As we have previously recognized, a reviewing court
should not be forced to speculate as to the grounds for an adjudicator’s rejection of
a claimant’s allegations of disabling pain.”) (citation omitted).
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V. CONCLUSION
For the foregoing reasons, the court REVERSES the ALJ’s February
10, 2017 decision and REMANDS the action to the ALJ. The clerk of court shall
close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 2, 2019.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Johns v. Berryhill, Civ. No. 18-00126 JMS-RLP, Order Reversing Decision of Acting
Commissioner of Social Security and Remanding Action for Further Proceedings

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