Auapaau v. O'Malley

Filing 21

ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS re 1 - Signed by JUDGE MICAH W.J. SMITH on 9/26/2024. For the foregoing reasons, the Commissioner's decision denying Auapaau's application for Social Security disability insurance benefits is REVERSED and REMANDED for further administrative proceedings consistent with this Order. (eta)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DAN AUAPAAU,

Civil No. 24-00176 MWJS-WRP

Plaintiff,
vs.
MARTIN O’MALLEY,
Commissioner of Social Security,

ORDER REVERSING DECISION OF
THE COMMISSIONER OF SOCIAL
SECURITY AND REMANDING FOR
FURTHER ADMINISTRATIVE
PROCEEDINGS

Defendant.

INTRODUCTION
Plaintiff Dan Auapaau appeals the denial of his application for Social
Security disability insurance benefits. He argues, among other things, that the
Administrative Law Judge (ALJ) failed to articulate sufficient reasons for
discrediting his testimony about the severity of his symptoms. The Court agrees
and therefore REVERSES the decision denying Auapaau’s application and
REMANDS for further administrative proceedings.
BACKGROUND
Sometime in the mid-1990s, Auapaau fell on a rock and severely injured his
head. ECF No. 15-8, at PageID.435 (Administrative Record (AR) at 400). By the
2000s, he began to suffer from seizures, id., and eventually was diagnosed with a
seizure disorder, ECF No. 15-3, at PageID.51 (AR at 21). Auapaau stopped

performing full-time work in February 2020, and later that year, he applied for
disability insurance benefits. Id. When that application was denied, he requested a
hearing before an ALJ. Id. at PageID.48 (AR at 18). In September 2022, Auapaau
and his spouse testified before the ALJ.
The Social Security regulations require ALJs to follow “a five-step
sequential process for determining whether an applicant is disabled within the
meaning of the Social Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648
F.3d 721, 724 (9th Cir. 2011). Those steps are:
(1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the
impairment meet or equal one of a list of specific impairments
described in the regulations? (4) Is the claimant able to perform any
work that he or she has done in the past? and (5) Are there significant
numbers of jobs in the national economy that the claimant can
perform?
Id. at 724-25; see also 20 C.F.R. § 404.1520.
Following the September 2022 hearing, the ALJ concluded that Auapaau’s
application survived the first two steps of the sequential analysis: he was not
presently working in substantially gainful activity, and his seizure disorder was
severe. ECF No. 15-3, at PageID.51-52 (AR at 21-22). At step three, the ALJ
found that Auapaau’s impairment did not meet the severity of an impairment that
would qualify him as disabled without regard to age, education, and work
experience. Id. at PageID.52 (AR at 22); see 20 C.F.R. § 404.1520(a)(4)(iii), -(e).
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For that reason, the ALJ next considered Auapaau’s residual functional capacity
(“RFC”) to assess whether he could still perform his past relevant work or make an
adjustment to other available work under steps four and five of the process.
In conducting the RFC analysis, the ALJ considered and ultimately rejected
Auapaau’s hearing testimony about the severity of his symptoms. Auapaau had
been a small business owner of a tents service for fifteen years before he filed his
disability claim. ECF No. 15-7, at PageID.227 (RA at 193). For his business,
Auapaau rented out large event tents (for example, for weddings or outdoor
parties), drove those tents to the event sites, and provided setup and breakdown of
the tents. Id. At the hearing, Auapaau testified that he had not been able to work
that job for over two years (since February 2020) because of his doctor’s
instructions. ECF No. 15-3, at PageID.69-70, 72 (AR at 39-40, 42). When the
ALJ asked why he was not able to work, Auapaau answered that it was because of
the seizures he was having: he “could have an attack while he’s driving or
something like that,” and because he “also cannot lift heavy stuff.” Id. at
PageID.70 (AR at 40). Moreover, certain environmental factors, such as “too
much light or . . . loud sounds” would “trigger[]” his seizures. Id. at PageID.74
(AR at 44).
Auapaau testified that he and his wife estimated that as of April 2022, he
would experience one seizure per month. Id. at PageID.70, 73 (AR at 40, 43). But
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Auapaau did not always know when he had a seizure, and Auapaau’s wife testified
that because she worked for eight to sixteen hours a day, she was not always able
to observe him when they happened. Id. at PageID.73, 79(AR at 43, 49). When
Auapaau had a seizure, it would last for approximately a minute and take him
fifteen minutes to recover. Id. at PageID.71 (AR at 41). And even after getting
“back to normal,” he would still “feel very weak and very sleepy so the only thing
I want to do is just sleep.” Id. at PageID.73 (AR at 43). Auapaau reported that
when he slept after having a seizure, he did not know for how long he was asleep,
but his children would usually tell him that he had been “sleeping three to four
hours.” Id. at PageID.74 (AR at 44).
Auapaau explained that his condition was “getting better” since he stopped
working in February 2020,his doctor adjusted his prescription, and he seemed to
have fewer seizures overall. Id. at PageID.72-73 (AR at 42-43). But taking that
medicine limited his capabilities because he was required to take it “at 9:00 a.m.
and 9:00 p.m.,” and he felt “weak” after doing so and could not “do any work.” Id.
at PageID.74-75 (AR at 44-45).
The ALJ found that Auapaau’s medically determinable impairments “could
reasonably be expected to cause the alleged symptoms.” Id. at PageID.53 (AR at
23). But the ALJ nonetheless rejected Auapaau’s testimony, finding that his
“statements about the intensity, persistence, and limiting effects of his symptoms”
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were “inconsistent with the overall record.” Id. at PageID.53 (AR at 23). The ALJ
therefore concluded that Auapaau generally had the RFC to perform “medium
work,” id. at PageID.52 (AR at 22), which requires “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25
pounds.” 20 C.F.R. § 404.1567(c).
The ALJ provided two grounds to support his credibility finding. First, the
ALJ found that Auapaau’s activities of daily living were inconsistent with his
testimony about the severity of his symptoms. Auapaau testified that he “had been
instructed to cease working” and that “he could not perform heavy lifting and that
there was a danger of a seizure occurring while driving.” Id. at PageID.53 (AR at
23). But Auapaau also “reported that he has a driver’s license and is able to drive,”
and “that he is able to answer phones and discuss pricing with potential customers
to his tent rental business.” Id. The ALJ further noted that Auapaau “was able to
assist with moving furniture for pay, but he noted that machinery helped to limit
heavy lifting,” and that “[w]hen asked about the heaviest weight lifted, he stated
that he lifted a couch.” Id. Moreover, the ALJ pointed out that Auapaau’s doctor
cleared him to travel to Australia. Id. According to the ALJ, these activities
contradicted Auapaau’s testimony: “[c]ontrary to concerns over safety involving

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heavy lifting or interruption of dangerous activities, the claimant has helped to lift
a couch and drives on public roads.” Id.
Second, the ALJ explained that Auapaau’s testimony about the “intensity,
persistence, and limiting effects of his symptoms” were “inconsistent with the
overall record.” Id. In particular, the ALJ found that “the record indicates that
changes to medication or better compliance would improve the claimant’s seizure
activity.” Id. Here, the ALJ pointed out that Auapaau had at one time been
“experiencing a non-convulsive seizure that lasts for one minute approximately
once every one to two weeks,” but that in May 2020, a doctor “reported suspicions
of medication noncompliance as the cause” of two then-recent “partial
breakthrough seizures.” Id. Then, in September 2020, another doctor reported that
Auapaau would have “a non-convulsive seizure that lasts for one minute
approximately once every one to two weeks.” Id. And “after titrating medication,
the claimant’s seizure activity reduced to only once a month.” Id. This evidence,
in the ALJ’s view, demonstrated that Auapaau “could perform medium work and
does not require seizure precautions beyond” the above-described RFC. Id.1
Given his determination that Auapaau’s RFC allowed him to perform
medium work, the ALJ concluded—at steps four and five of the sequential

1

The ALJ also considered and rejected the testimony of Auapaau’s spouse
and medical evidence provided by Auapaau’s doctor and credited instead the
evidence provided by state agency consultants. Id. at PageID.53-55 (AR at 23-25).
6

analysis—that Auapaau could perform the requirements of his past work as a small
business operator, as well as the requirements of representative occupations such
as an auto detailer, kitchen helper, and hospital cleaner. Id. at PageID.55-56 (AR
at 25-26). Auapaau therefore would not be considered disabled between
February 12, 2020, and the date of the ALJ’s decision. Id.
Auapaau requested a review of the ALJ’s decision, which the Appeals
Council denied, making the ALJ’s decision the final decision of the Commissioner.
Id. at PageID.31-34 (AR at 1-4). He then appealed to this Court, which has
jurisdiction under 42 U.S.C. § 405(g).
STANDARD OF REVIEW
This Court must affirm an ALJ’s disability determination unless “it is either
not supported by substantial evidence or is based upon legal error.” Luther v.
Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). And while “substantial” means
“more than a mere scintilla,” it requires “only such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Woods v.
Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (cleaned up).
But while a court’s review is deferential, it must “review only the reasons
provided by the ALJ in the disability determination and may not affirm the ALJ on
a ground upon which [they] did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007). As the Ninth Circuit has explained, “[l]ong-standing principles of
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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.” Bray v. Comm’r of Soc.
Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009).
DISCUSSION
Many Social Security disability benefits cases hinge on the credibility of a
claimant’s testimony about the severity of their symptoms. To test the credibility
of such testimony, ALJs sometimes compare it to the claimant’s activities of daily
living: does an applicant participate in activities that are inconsistent with the
limitations they allege? That kind of analysis—which follows the maxim that
actions speak louder than words—makes intuitive sense, and the law permits it.
But there is a danger in conducting an analysis of that sort, for “disability
claimants should not be penalized for attempting to lead” their “lives in the face of
their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). To
safeguard against that danger, the Ninth Circuit has provided guidelines for using
evidence of a claimant’s activities of daily living to assess a claimant’s symptom
testimony: If a medical impairment has been established, and there is no evidence
that the claimant is malingering—that is, exaggerating or feigning their illness—
then “the ALJ must provide specific, cogent reasons” for disbelieving the
claimant’s symptom testimony, and those reasons “must be clear and convincing.”
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Orn, 495 F.3d at 635 (cleaned up). Moreover, daily activities may be found to bear
on the credibility of a claimant’s testimony only if (1) the activities actually
contradict the claimant’s symptom testimony, or (2) they show that the claimant
spends a substantial part of their day engaged in pursuits that are transferable to a
work setting. Id. at 639. Absent one of these grounds, a claimant’s daily activities
cannot fairly be said to detract from a claimant’s testimony about the effect of their
disability.
In this case, Auapaau testified that his doctor had instructed him to cease
working because “he could not perform heavy lifting” and “there was a danger of a
seizure occurring while driving.” ECF No. 15, at PageID.53 (AR at 23). Auapaau
further testified that he would “feel very weak and very sleepy” after a seizure, id.
at PageID.73 (AR at 43); that while he and his spouse estimated that he had a
single seizure per month, he did not always know when he had a seizure, id.; that
certain environmental circumstances, such as “too much light or . . . loud sounds”
would “trigger[]” his seizures, id. at PageID.74 (AR at 44); and that his prescribed
medication, which he was required to take at 9:00 a.m. and 9:00 p.m., left him
“weak” and unable to “do any work,” id. at PageID.74-75 (AR at 44-45).
The ALJ found no malingering and acknowledged that his seizure disorder
could reasonably be expected to cause the alleged symptoms. But the ALJ
nonetheless concluded that Auapaau’s symptom testimony was contradicted by the
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facts that he (a) had a driver’s license and was able to drive, (b) helped to operate
his tent rental business, (c) had helped with a furniture moving business and once
helped to lift a couch, and (d) had been cleared to travel to Australia. Although
these grounds could, with further elaboration, conceivably support the finding that
Auapaau could perform medium work, the ALJ’s decision did not supply the
specific, cogent reasons needed to support that conclusion.
Take Auapaau’s driving. The ALJ stated simply that Auapaau had a driver’s
license and could drive. Neither of these grounds, standing alone, is sufficient to
contradict Auapaau’s testimony that there was a danger he could have a seizure
while driving, particularly on the longer distances that would be necessary to work.
To be sure, Auapaau did testify at the hearing that he drove his children to school
when his spouse was not able to do so because of work. But he also testified that
his children’s school is a three-minute drive from his home. ECF No. 15-3, at
PageID.75 (AR at 45). It is possible that the ALJ, on remand, could reason that a
parent who truly believed they were a danger on the road would not drive with
their children. And on appeal, the Commissioner makes precisely that argument:
“if Plaintiff were really as dangerous behind the wheel as he claimed, it would be
reasonable to expect that he would avoid putting his own children in the car with

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him for a three-minute drive (which could take as little as 20 minutes to walk).”
ECF No. 19, at PageID.787 n.3.
But the ALJ did not articulate that reasoning in his written decision. And the
Court cannot readily infer that the ALJ would have adopted that reasoning. As the
record currently stands, there is no evidence suggesting that the route to school was
walkable at all, or that Auapaau and his spouse had any better, safer option for
transporting their children. See ECF No. 20, at PageID.799 n.1 (“The
Commissioner’s argument assumes that Dan’s neighborhood was walkable, that
his children did not have disabilities, and any other number of reasons why a short
drive was a necessity.”). In the end, the Commissioner offers only “post hoc
rationalizations that attempt to intuit what the adjudicator may have been
thinking.” Bray, 554 F.3d at 1225. Those rationalizations may be persuasive, but
the Court cannot affirm on such grounds.
The ALJ’s reliance on Auapaau’s tent rental business suffers from similar
flaws. On this topic, the ALJ merely stated that Auapaau “is able to answer phones
and discuss pricing with potential customers.” ECF No. 15-3, at PageID.53 (AR at
23). But the ALJ did not identify how Auapaau’s ability to talk on a phone
contradicted his other testimony about the severity of his symptoms. Nor did the
ALJ suggest that Auapaau participated in this tent rental business with a sufficient
frequency to support the conclusion that he was spending a substantial part of his
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day engaged in pursuits that are transferable to a work setting. Orn, 495 F.3d at
639. And the record, at present, does not support either conclusion. Auapaau’s
testimony at the hearing revealed—without contradiction—that his current tent
rental business operations are quite minimal. As Auapaau explained, he owns tents
that are rented out for various events. ECF No. 15-3, at PageID.68-69 (AR at 3839). At the time of the hearing, he did no lifting or transporting of tents himself,
but instead paid nephews to do that work. Id. And when asked “[h]ow many
hours a week on average” he spent “on this business,” Auapaau answered that
“[s]ometimes there’s none at all and sometimes maybe three times a month I get a
call.” Id. at PageID.69 (AR at 39). It is not obvious how Auapaau’s ability to
answer a phone three times a month would contradict his testimony about the
severity of his symptoms. At a minimum, the ALJ offered no answer to that
question, and the Court may not divine one on appeal.2
Similar problems infect the ALJ’s reliance on Auapaau’s testimony that he
helped to move furniture for pay. In theory, participating in that kind of work

2

Activities of daily living might contradict symptom testimony even if they
amount only to “part-time work,” Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir.
2020), or merely suggest “some difficulty functioning” but not a complete inability
to function, Molina v. Astrue, 674 F.3d 1104, 11113 (9th Cir. 2012). Even if a
claimant does not spend a substantial part of their day engaged in an activity that is
transferable to a work setting, that same activity still might undermine a claimant’s
symptom testimony if it actually contradicts that testimony. But whatever the
nature of the activity at issue, the ALJ must actually explain how it contradicts the
symptom testimony. The ALJ did not adequately do so here.
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could contradict a claimant’s testimony about the severity of their symptoms, but
the ALJ here did not adequately explain why Auapaau’s conduct does so here. To
begin with, the ALJ nowhere acknowledged that Auapaau had not helped with the
moving of furniture for more than a year prior to the hearing. ECF No. 15-3 at at
PageID.72 (AR at 42). Nor did the ALJ acknowledge that Auapaau—by his
uncontradicted testimony—had only helped move furniture sporadically, around
two to four times a month, and did this work with the assistance of machinery. Id.
And the ALJ did not explain how Auapaau’s participation in an activity fewer than
one time a week (and lifting a couch on a single occasion) would contradict his
testimony that he could not perform similar tasks on a full-time basis.3 In sum, the
ALJ did not offer “specific, cogent reasons” for disbelieving Auapaau’s symptom
testimony based on his past sporadic work helping to move furniture with the
assistance of machinery. Orn, 495 F.3d at 635 (cleaned up).
Finally, although the ALJ mentioned that Auapaau was cleared to travel to
Australia, the ALJ did not adequately explain why that would contradict
Auapaau’s testimony about the severity of his symptoms. At the hearing, Auapaau

3

The Commissioner argues, in passing, that Auapaau “never told the ALJ that
he lifted a couch only once.” ECF No. 19, at PageID.787 n.4. That may be true,
but he also did not say that he repeatedly lifted couches, and the ALJ made no
finding that Auapaau did so more than once. And while Auapaau testified that he
helped move furniture, again, his testimony was that he did so with the aid of
machinery—a point the ALJ did not dispute or question. ECF No. 15-3, at
PageID.71.
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explained that he had traveled to Australia, and then to Samoa for his father’s
funeral. ECF No. 15-3, at PageID.75 (AR at 45). But Auapaau did not travel
alone—he went with his sister and spouse. Id. at PageID.76 (AR at 46). The ALJ
did not explain why an assisted trip of this sort, done once, would suggest that
Auapaau could perform medium work full-time.
*

*

*

The Commissioner argues that the ALJ’s decision should still be affirmed
because the ALJ separately found that the medical evidence did not support
Auapaau’s testimony. ECF No. 19 at PageID.786 n.1, 789-93. But because the
ALJ relied in part on his assessment of Auapaau’s activities of daily living, and did
not say that he would have reached the same conclusion based solely on his
separate assessment of the medical evidence, it is not clear from the current record
that the ALJ would necessarily have rejected Auapaau’s testimony based on the
medical evidence alone. That is a matter the ALJ must take up on remand.
Auapaau, for his part, argues that the Court should simply remand with
instructions to award benefits, rather than remand for further proceedings. ECF
No. 17, at PageID.781. The Court declines to do so. Although the Court has
concluded that the ALJ’s decision did not adequately justify its rejection of
Auapaau’s symptom testimony, it is conceivable that the ALJ might be able to
offer sufficient reasons on remand. For that reason, the Court agrees with the
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Commissioner, see ECF No. 19 at PageID.793, that the proper course is to remand
for further proceedings.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision denying Auapaau’s
application for Social Security disability insurance benefits is REVERSED and
REMANDED for further administrative proceedings consistent with this Order.
IT IS SO ORDERED.
DATED: September 26, 2024, at Honolulu, Hawai‘i.

/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge

_____________________________________________________________________________________

Civil No. 24-00176 MWJS-WRP; Dan Auapaau v. Martin O’Malley; ORDER
REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
15