Cavett v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED for further proceedings. Signed on 3/31/2020 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

PAUL C.,1

Case No. 6:18-cv-00639-AA
OPINION AND ORDER
Plaintiff,

vs.
ANDREW SAUL,
Commissioner of Social Security
Defendant.
AIKEN, District Judge:
Plaintiff Paul C. seeks judicial review of the final decision of the Commissioner
of Social Security (“Commissioner”) denying his claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).

This Court has

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons below, the
Commissioner’s decision is REVERSED and REMANDED for further proceedings.
///

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.

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BACKGROUND
On November 26, 2013, plaintiff applied for DIB and SSI Under Titles II and
XVI of the Social Security Act (“Act”) respectively. Tr. 18. Plaintiff alleged disability
beginning January 1, 2003, due to a broken collar bone; damaged tendons in both
hands; numbness and sensitivity in the feet and legs; hip misalignment; exhaustion;
significant weight loss; and depression. Tr. 72. Plaintiff’s DIB and SSI were denied
initially and upon reconsideration. On September 2, 2016, plaintiff appeared at a
hearing in front of an administrative law judge (“ALJ”). During this hearing, plaintiff
was represented by counsel, and a vocational expert testified. On November 21, 2016,
the ALJ performed a sequential analysis and determined that plaintiff was not
disabled under the Act. The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner.

Subsequently, plaintiff filed the

present complaint before this Court.
STANDARD OF REVIEW
A reviewing court shall affirm the decision of the Commissioner if it is based
on proper legal standards and the findings are supported by substantial evidence in
the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.
2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, the district

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court must

“review the

administrative record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusion.” Davis v. Heckler, 868 F.2d 323, 326 (9th Cir.
1989).

If the evidence is subject to more than one interpretation but the

Commissioner’s decision is rational, the Commissioner must be affirmed because “the
court may not substitute its judgment for that of the Commissioner.” Edlund v.
Massanari, No. 99-35555, 2001 U.S. App. LEXIS 17960, at *12 1156 (9th Cir. Aug. 9,
2001).
COMMISSIONER’S DECISION
The plaintiff bears the initial burden of proof to establish disability. Howard
v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiffs must
demonstrate an “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected . .
. to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A).
The Social Security Administration uses a five-step sequential evaluation to
determine whether a claimant is disabled.

See 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). The burden of proof falls to the claimant at steps one through four and
with the Commissioner at step five. Id.; Bustamante v. Massanari, 262 F.3d 949,
953–54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
At step five, the Commissioner must show that the claimant can adjust to other work
after considering the claimant’s residual functional capacity (“RFC”), age, education,
and work experience.

20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

If the

Commissioner fails to meet this burden, then the claimant is disabled.

Id. If,

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however, the Commissioner proves that the claimant can perform other work existing
in significant numbers in the national economy, the claimant is not disabled. Id.; see
also Bustamante, 262 F.3d at 953–54.
Here the ALJ found that plaintiff was not disabled. At step one, the ALJ found
that plaintiff had performed substantial gainful activity since January 1, 2003, his
alleged onset date. Tr. 20. From July 2004 to September 2004, plaintiff worked as a
fundraiser for MAS Enterprises. Tr. 20. During this time, plaintiff made phone calls
soliciting charitable donations “for about a month, possibly longer, [and worked]
approximately twenty hours per week earning approximately minimum wage.” Tr.
20. Earnings records showed the claimant earned $4,098.25. Id. The ALJ stated
that there were “no allegations of poor performance at the job or special work
conditions.” Id. However, the ALJ also found that there had been continuous twelvemonth periods during which plaintiff did not engage in substantial gainful activity.
Tr. 21. During the period from plaintiff’s alleged disability onset date, January 1,
2003, to the date of last insured, September 30, 2009, in addition to plaintiff’s job as
a fundraiser in 2004, plaintiff also worked in 2005, 2008, and 2009. Id. The ALJ
found that the earnings from these other jobs did “not rise to the level necessary to
find that [plaintiff] engaged in substantial gainful activity.” Id. Plaintiff also worked
after the application date, November 26, 2013. Id. The ALJ also found that the
earnings from that job did not rise to the level necessary to find that plaintiff engaged
in substantial gainful activity. Id.

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At step two, the ALJ found that plaintiff had the following severe impairments:
left shoulder strain; lumbar spine degenerative disc disease and thoracic lumbosacral
radiculitis status post laminectomy; and major depressive disorder. Id. At step three,
the ALJ found that plaintiff’s impairments or combination of impairments did not
meet or medically equal the severity of one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Tr. 24–25.
Before proceeding the step four, the ALJ determined that plaintiff’s RFC
allowed him to perform light work with these limitations:
The claimant is limited to lifting and/or carrying 20 pounds occasionally
and 10 pounds frequently, sitting standing, and/or walking six hours
each in an eight hour day, with normal breaks. The claimant is limited
to no more than occasional bilateral push and/or pull with the lower
extremities. He is limited to no more than occasional climbing of ramps
or stairs and no climbing of ladders, ropes, or scaffolds. The claimant is
limited to no more than frequent balancing. He is limited to no more
than occasional stooping, kneeling, crouching, and crawling. He is
limited to no more than frequent overhead reaching with the left. He is
limited to understanding and carrying out simple instructions in a work
environment with few workplace changes.
Tr. 24. At step four, the ALJ found that plaintiff could perform his past relevant work
as fundraiser II (DOT Code 293.357-014). Tr. 30. This finding was based on both a
review of plaintiff’s records and the testimony of a vocational expert. Tr. 31. The
vocational expert stated that the job of fundraiser II is
a light, unskilled job with a specific vocational profile (SVP) of two, . . . .
that the claimant performed the job at the sedentary exertional level[,]
. . . . [and] that if the claimant performed the job for about a month,
twenty hours per week as he testified, the claimant would have met the
durational requirements for past relevant work for a job with a specific
vocational preparation [sic] (SVP) of two.
Tr. 31.

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At step five, as an alternative to the finding at step four that plaintiff could
perform past relevant work, the ALJ found that based on plaintiff’s age, education,
work experience, and RFC, jobs existed in significant numbers in the national
economy that plaintiff could sustain substantial gainful employment despite his
impairments. Tr. 31. Specifically, the ALJ found that plaintiff could perform the
representative occupations of Cafeteria Attendant, Office Helper, and Photo Copy
Machine Operator. Tr. 32. Based on the findings at each step, the ALJ concluded
that plaintiff was not disabled under the Act from January 1, 2003, through the date
of her decision, November 21, 2016.
DISCUSSION
Plaintiff contends that the ALJ erred by (1) improperly rejecting the opinions
of plaintiff’s treating physician, (2) improperly discounting statements from plaintiff’s
treating mental health provider, and (3) improperly discounting plaintiff’s subjective
symptom testimony. Each argument is addressed in turn.
I.

Medical Opinion of Matthew Kaiser, M.D.
Plaintiff argues that the ALJ improperly rejected Matthew Kaiser, M.D.’s

medical opinions. Dr. Kaiser practices family medicine at PeaceHealth and treated
plaintiff on one occasion, May 17, 2016. Tr. 656. At that appointment, Dr. Kaiser
diagnosed plaintiff with lumbar spinal stenosis and noted plaintiff’s prior lumbar
laminectomy surgery for spinal cord decompression. Id. Dr. Kaiser’s treatment notes
indicated that plaintiff reported experiencing chronic pain since the laminectomy
surgery. Tr. 658. Dr. Kaiser also noted the location of plaintiff’s pain and the

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sensation of the pain but did not indicate which actions or activities caused the pain
or if plaintiff was in constant pain. Id. Dr. Kaiser noted that plaintiff had used a
walker “since just before his spine surgery[,]” but did not indicate that he observed
plaintiff having issues with sitting during the visit or that plaintiff mentioned any
problems with sitting. See Tr. 656–59.
In a letter dated September 26, 2016, Dr. Kaiser provided opinions about
plaintiff’s sitting limitations. Tr. 705. The entirety of the letter reads: “[Plaintiff] is
a patient under my care. He has a history of ongoing low back pain secondary to
spinal stenosis and is unable to tolerate sitting for long periods of time.” Tr. 705. The
ALJ rejected that opinion because Dr. Kaiser did not define “long periods of time,”
and “he did not provide any physical examination findings or objecting [sic] medical
tests results such as diagnostic imaging to support his conclusion.” Tr. 27.
Dr. Kaiser’s opinion was contradicted by examining doctor, Dr. Wendling, D.O.,
who opined that plaintiff could sit for up to six hours. Compare Tr. 705 with Tr. 371.
As such, the ALJ need only provide specific and legitimate reasons, supported by
substantial evidence, to reject Dr. Kaiser’s opinion. Tommasetti v. Astrue, 533 F.3d
1035, 1040 (9th Cir. 2008). Specific, legitimate reasons for rejecting a physician’s
opinion include reliance on a claimant’s discredited subjective complaints,
inconsistency with the medical records, inconsistency with a claimant’s testimony, or
inconsistency with a claimant’s daily activities. Id.
Plaintiff first argues that “the ALJ failed to consider Dr. Kaiser’s opinions
under the appropriate factors.” Doc. 13 at 7. An ALJ must weigh the following factors

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when considering medical opinions: (1) whether the source has an examining
relationship with claimant; (2) whether the source has a treatment relationship with
claimant; (3) supportability (as shown by relevant evidence and explanation); (4)
consistency with the record as a whole; (5) specialization; and (6) other factors,
including the source’s familiarity with other information in the record. 20 C.F.R. §
404.1527(c)(1)–(6). The failure to consider these factors “alone constitutes reversible
legal error.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017).
The Court finds that the ALJ properly considered the factors when weighing
Dr. Kaiser’s medical opinion. The ALJ recognized that Dr. Kaiser was a treating
physician of plaintiff, while also considering that Dr. Kaiser only saw and treated
plaintiff on one occasion in May 2016. Tr. 27. In the treatment notes from that single
treatment occasion on May 17, 2016, Dr. Kaiser diagnosed plaintiff with lumbar
spinal stenosis and noted plaintiff’s prior lumbar laminectomy surgery for spinal cord
decompression. Id. (citing Tr. 656). Further, the ALJ found that Dr. Kaiser had not
sufficiently supported his opinion regarding plaintiff’s sitting limitations to give it
weight. Id. Under these factors, it was reasonable for the ALJ to afford little weight
to Dr. Kaiser’s opinion and she did not commit legal error for doing so.
Plaintiff next argues that the ALJ erred by rejecting Dr. Kaiser’s opinion
because Dr. Kaiser did not define the sitting limitations. Plaintiff asserts that it is
the task of the ALJ, not the medical provider, to translate medical findings and
opinions into concrete restrictions. When evaluating medical opinions, an ALJ need
not accept a brief, conclusory, or inadequately supported opinion. Bayliss v.

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Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). And although an ALJ is charged with
reviewing the medical record to determine limitations, Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1174 (9th Cir. 2008), only limitations that are supported by
substantial evidence must be incorporated into a claimant’s RFC. Osenbrock v. Apfel,
240 F.3d 1157, 1163–65 (9th Cir. 2001). In plaintiff’s RFC, the ALJ determined that
plaintiff could sit for up to six hours in an eight-hour workday. Tr. 24. Plaintiff
asserts that the medical record documents a greater restriction than that in the RFC.
As explained below, the medical record does not include evidence to support the
severe sitting limitation that plaintiff alleges.
Next, plaintiff challenges ALJ’s finding that Dr. Kaiser failed to support his
opinion. Plaintiff contends that imaging studies of plaintiff’s back from February
2014, plaintiff’s 2015 laminectomy surgery, and the medical record as a whole should
provide the context in which Dr. Kaiser’s September 2016 statement was made.
The Court finds this argument unconvincing as there is nothing in either Dr.
Kaiser’s treatment notes or the medical record as a whole indicating that plaintiff’s
back pain would cause limitations with sitting.

Dr. Kaiser’s treatment notes

indicated that plaintiff had issues walking but did not indicate any other
musculoskeletal issues, such as pain while seated. Tr. 656–59. Furthermore, as the
ALJ pointed out, plaintiff never indicated that he had issues sitting and plaintiff’s
reported activities—specifically watching movies at the theater and reading at the
library—negate the suggestion of a siting limitation. Tr. 23, 25. Although the ALJ
did not specifically cite plaintiff’s lack of alleged sitting impairment or other evidence

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that showed a lack of sitting limitation in the section of her findings rejecting Dr.
Kaiser’s opinion, reviewing courts “are not deprived of [their] faculties for drawing
specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881
F.2d 747, 755 (9th Cir. 1989). “Even when an agency explains its decision with less
than ideal clarity, [courts] must uphold it if the agency’s path may be reasonably
discerned.” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (internal quotation
marks omitted).
In sum, the ALJ correctly considered the relevant factors when weighing Dr.
Kaiser’s opinion, and she did not err by rejecting Dr. Kaiser’s opinion for failing to
define “long periods of time” or for failing to provide examinations or objective medical
tests to support the opinion.
II.

“Other” Medical Source Opinion of Betsy Pownall, LPC.
Next, plaintiff asserts that the ALJ erred by discounting the opinion of

plaintiff’s counselor, Betsy Pownall, LPC. Ms. Pownall began conducting mental
health therapy sessions with plaintiff in August 2014.

Tr. 441.

Ms. Pownall

diagnosed plaintiff with major depressive disorder and posttraumatic stress disorder
(“PTSD”). Tr. 439. On May 18, 2016, Ms. Pownall completed a mental residual
function capacity assessment in the form of written responses and a check-box form.
Tr. 548–54. Ms. Pownall later indicated that her assessment was based on plaintiff’s
depression. Tr. 662. Ms. Pownall noted that plaintiff socially isolates himself, feels
that others are “against” him, and “deals with a feeling of hopelessness, fatigue and
chronic pain, emotional lability, low self esteem and low self worth.” Tr. 548. She

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opined that plaintiff has marked limitations with understanding and remembering
both simple and detailed instructions and with sustaining concentration and
persistence, and he has moderate limitations with the ability ask simple questions or
request assistance and the ability to be aware of normal hazards and take appropriate
precautions. Tr. 552–54. Ms. Pownall stated that plaintiff’s prognosis was fair with
ongoing support. Tr. 554.
On May 23, 2016, Ms. Pownall submitted an additional letter in which she
focused on the symptoms of plaintiff’s PTSD and how it “affects his daily skills of
living.” Tr. 662. Ms. Pownall opined that plaintiff’s “ability to keep up with the daily
skills of his life is challenging for him” and “social isolation, sadness, fatigue, chronic
physical pain, and depression impinge on [plaintiff’s] ability to work and be
productive.” Tr. 662.
The ALJ afforded Ms. Pownall’s opinions “partial weight.” Tr. 29. The ALJ
first noted that Ms. Pownall “opined [that] it was beyond her scope of practice and
experience to answer accurately questions regarding the claimant’s ability to work
with others,” Tr. 28, see Tr. 548, and Ms. Pownall repeatedly indicated that “she was
unable to determine specific limitations.” Tr. 29, see Tr. 552–54. The ALJ also noted
that Ms. Pownall’s “assessment was at least partially based on the claimant’s selfreport.” Tr. 28–29. Finally, the ALJ stated that
The opinion of a licensed professional counselor is not by an acceptable
medical source and the opinion must be considered an opinion of “other
sources” according to 20 CFR 404.1513 and 20 CFR 416.913.
Furthermore, Ms. Pownall did not provide specific functional
limitations. However, the opinion is consistent with the consultative
examiner’s findings indicating the claimant has severe mental health

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conditions with social [sic] and concentration, persistence, and pace
limitations.
Tr. 29.
Under the rules in effect at the time that plaintiff filed his claim, licensed
professional counselors were not considered “acceptable medical sources.” SSR 0603p, 2006 WL 2329939, at *2 (Aug. 9, 2006).2 Non-acceptable medical sources are
commonly categorized as “other sources.” Molina, 674 F.3d at 1111. Although the
opinions of other sources “are not entitled to the same deference [as acceptable
medical sources], an ALJ may give less deference to ‘other sources’ only if the ALJ
gives reasons germane to each witness for doing so.” Revels v. Berryhill, 874 F.3d
648, 655 (9th Cir. 2017) (citing Molina, 674 F.3d at 1111). “The same factors used to
evaluate the opinions of medical providers who are acceptable medical sources are
used to evaluate the opinions of those who are not.”

Id.; SSR 06-03p at *2–3.

Germane reasons to discount opinions include inconsistency with an opinion provided
by an acceptable medical source and internal inconsistencies within the opinion.
Robinson v. Berryhill, 690 Fed. App’x 520, 524 (9th Cir. 2017); see Molina, 674 F.3d
at 1111–12. Additionally, an ALJ “may permissibly reject[] . . . check-off reports that
[do] not contain any explanation of the bases of their conclusions.” Molina, 674 F.3d.
at 1111 (internal citations omitted); see also Thomas v. Barnhart , 278 F.3d 947, 957
(9th Cir. 2002) (An ALJ “need not accept [an] opinion [that] is brief, conclusory, and
inadequately supported by clinical findings”).

2 SSR 06-03p defined “acceptable medical sources” as licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech pathologists.

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The ALJ did not err in discrediting Ms. Pownall’s opinions regarding plaintiff’s
limitations because Ms. Pownall herself stated that she had difficultly determining
plaintiff’s functioning and limitations. The ALJ specifically mentions that in Ms.
Pownall’s first assessment, she was unable to opine on multiple areas related to
Plaintiff’s limitations and “did not provide specific functional limitations” in her
Mental Residual Functional Capacity Report. Tr. 29–28. Furthermore, in her first
assessment, Ms. Pownell repeatedly indicated that she was unable to determine
specific limitations and said that it was “difficult for [her] to state directly whether
[she] believe[d] [plaintiff] could hold down a full time job.” Tr. 548–54. However, just
a few days later, Ms. Pownall submitted a second assessment in which she opined
that plaintiff experiences symptoms that would inhibit his ability to work. Tr. 662.
Because Ms. Pownall gave two different opinions on plaintiff’s ability to work within
a short time frame, it creates ambiguity in her opinion as to whether plaintiff has
limitations as it relates to working. This ambiguity is a germane reason to discredit
Ms. Pownall’s opinion. See Robinson, 690 Fed. App’x at 524 (where the court found
that the ALJ appropriately discrediting the opinion of an “other source” because it
contained internal inconsistencies and the opinion contradicts the opinions of
acceptable medical sources); see Molina, 674 F.3d at 1111–12 (where the court found
statements from the “other source” to be inconsistent because the source said that the
claimant experienced intermittent panic attacks but also said that the claimant
panicked in several situations throughout the day, rendering the claimant unable to
work).

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Similarly, the ALJ did not err when she cited the lack of specific functional
limitations as a reason to only award partial credit to Ms. Pownall’s opinion. An ALJ
“is not required to provide any reasoning to reject medical opinions that do not contain
specific functional limitations.” Wilson v. Berryhill, 732 Fed. App’x 504, 506 (9th Cir.
2018) (citing Stubbs-Danielson, 539 F.3d at 1174). Furthermore, the ALJ compared
Ms. Pownall’s opinions with the opinions of Dr. Roman. Tr. 29. As such, the Court
should defer to the ALJ’s reasonable assessment of specific functional limitations
regarding plaintiff’s concentration and memory limitations because they are
supported by substantial evidence in the record. See Stubbs-Danielson, 539 F.3d at
1174; see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence
is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.”).
By contrast, the ALJ did err in citing the fact that Ms. Pownall was not an
acceptable medical source when discrediting Ms. Pownall’s opinion. Both acceptable
medical sources and “other” medical sources may opine on a claimant’s functional
limitations, 20 C.F.R. §§ 404.1513(a)(3)–(4), 404.1527(f), 416.913(a)(3)–(4), 416.927(f),
even if “other source” opinions are not given the same level of deference as acceptable
medical sources. Molina, 674 F.3d at 1111 (citing § 404.1527; SSR 06-03p, 2006 SSR
LEXIS 5). However, that error is harmless because the ALJ’s other reasons for
rejecting Ms. Pownall’s opinion were germane and supported by substantial evidence.
See Molina, 674 F.3d at 1115 (error is harmless where it is inconsequential to the
ultimate nondisability determination).

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Finally, plaintiff argues that the ALJ impermissively discounted Ms. Pownall’s
opinion because it was partially based on plaintiff’s self-report. Although the ALJ’s
decision noted that some of Ms. Pownall’s opinions were based in part on plaintiff’s
self-report, it is unclear, in context, whether the ALJ rejected the opinions for that
reason. Tr. 28–29, 552.
To the extent the ALJ did discount the opinion for this reason, that was error.
It is appropriate and acceptable for opinions regarding mental health to demonstrate
partial reliance on a claimant’s self-report. Buck v. Berryhill, 869 F.3d 1040, 1049
(9th Cir. 2017). But, like the ALJ’s reliance on Ms. Pownall’s status as an “other”
medical source, any error in discounting Ms. Pownall’s opinions for being based on
plaintiff’s self-report would be harmless.
In sum, the ALJ did not commit reversible error in assigning partial weight to
Ms. Pownall’s opinions about plaintiff’s mental limitations.
III.

Plaintiff’s Subjective Symptom Testimony
Finally, plaintiff argues that the ALJ erred in rejecting his subjective symptom

testimony. Plaintiff alleges that his rejected testimony demonstrates that he has both
physical and mental limitations that will detrimentally impact his ability to work.
Physically, plaintiff testified to having back issues that resulted in severe pain.
Tr. 59, 64, 245, 250, 291, 296, 399, 418, 430, 560. At the hearing, plaintiff testified
that shortly before he applied for benefits, he was unable to walk more than a few
steps without severe pain.

Tr. 50.

He also explained that in 2015 he had a

laminectomy back surgery to resolve his back pain and then a secondary surgery

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shortly after the first in order to fix a spinal fluid leak, which prolonged and
complicated his recovery. Tr. 64, see also 598–99, 639–42. Plaintiff asserted that he
continued to have pain while walking and standing despite the surgery, and that he
could only walk a block before needing to rest for five to ten minutes. Tr. 64. Plaintiff
also testified to limitations with use of his hands. Tr. 291. Plaintiff stated that he
had reduced sensation in his hands and that using a keyboard for more than an hour
would result in virtual incapacitation of his left hand for a month. Tr. 63–64. At the
same time, plaintiff acknowledged that he never received treatment for his hands.
Tr. 64.
Mentally, plaintiff asserts several limitations that would impair his ability to
work. First, plaintiff asserts that he experiences unease and finds it difficult to be
around others. Tr. 248, 250, 296. In his functional reports, plaintiff says that he does
not have friends, nor does he feel comfortable around others as a result of his
disability. Tr. 248, 292. He has also self-reported such issues to his counselor, Ms.
Pownall. Tr. 444, 446. At the hearing, plaintiff testified that he did not “deal well
with the public.”

Tr. 61.

Additionally, even when provided a script and only

communicating with others via telephone, plaintiff found it difficult to perform his
previous job as a fundraiser due to the necessary interacts with the public. Tr. 61.
Second, plaintiff claims that his depression impacts his ability hold employment.
Previously, plaintiff experienced suicidal ideation, and he continues to have
depressive symptoms and mood. See 668, 436–546. His depression worsened during
his alleged disability period after the death of his significant other. Tr. 436. Plaintiff

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takes medication for his mental health issues and attends therapy. Tr. 65, 374, 436–
546, 673–85. Plaintiff reported to his counselor that therapy has improved his mental
health. Tr. 496.
To determine whether a claimant’s testimony regarding his symptoms are
reliable, the ALJ must engage in a two-step analysis. Tommasetti, 533 F.3d at
1039. First, the claimant must “produce objective medical evidence of an underlying
impairment or impairments that could reasonably be expected to produce some
degree of symptom.” Id. Second, if the claimant produces this evidence and there is
no evidence of malingering, the ALJ can reject the claimant’s testimony about the
severity of his symptoms “only by offering specific, clear and convincing reasons for
doing so.” Id. (internal quotation marks omitted).

A general assertion that the

claimant is not credible is insufficient; the ALJ must “state which . . . testimony is
not credible and what evidence suggests the complaints are not credible.” Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently
specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.
1995). If the “ALJ’s credibility finding is supported by substantial evidence in the
record, [the court] may not engage in second-guessing.” Thomas, 278 F.3d at 959.
The ALJ found that plaintiff’s “statements concerning the intensity,
persistence, and limiting effects of [his] symptoms [were] not entirely consistent with
the medical evidence and other evidence in the record.” Tr. 30. First, the ALJ found
that plaintiff engages in daily activities that “are not limited to the extent one would

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expect, given his complaints of disabling symptoms and limitation.” Tr. 25. These
activities conflicted with both the physical and mental limitations that plaintiff
claims to have. Id. Second, the ALJ determined that the medical record does not
support the alleged symptoms and limitations that plaintiff claims to experience. Id.
As mentioned, the ALJ rejected plaintiff’s alleged limitations, in part because
they were inconsistent with his reported activities of daily living. The ALJ explained:
Due to his conditions and symptoms, the claimant stated that he has a
number of limitations, some of which involve lifting, squatting, bending,
standing, reaching, walking, kneeling, stair climbing, using his hands,
getting along with others, following instructions, and handling stress.
He reported that he tended to resent authority and he has been fired
from jobs over disagreements with supervisors. The claimant noted that
people make him uncomfortable and he no longer has friends or connects
with others. Despite such allegations of disabling symptoms and
limitations, the claimant can ride his bicycle into town, travel outside of
his home independently, tend to his personal care needs without special
reminders, care for his cat, prepare simple meals, clean, make his bed,
do laundry, shop in stores, live with friends, go to the movie theater and
library, remember to take his medications, count change, watch movies,
and read. Thus, the claimant engages in activities that are not limited
to the extent one would expect, given his complaints of disabling
symptoms and limitation.
Tr. 25 (internal citations omitted).
Daily activities may be used to discredit a claimant where they either “are
transferable to a work setting” or “contradict claims of a totally debilitating
impairment.” Molina, 674 F.3d at 1112–13 (citations omitted). Even if a plaintiff
shows some difficulties in functioning when performing those activities, the activities
can still constitute grounds for discrediting claimant’s testimony “to the extent that
they contradict claims of a totally debilitating impairment.” Id. However, a plaintiff
need not be totally incapacitated in order to be eligible for benefits. Id. at 1112–13.

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The ALJ appropriately discredited plaintiff’s subjective symptom testimony
after she found that plaintiff’s daily activities were inconsistent with his alleged
limitations regarding his mental health. Plaintiff claimed that he has difficulty
“getting along with others” and had issues in the area of social functioning due to his
mental health. Tr. 23, 25. The ALJ noted that, although plaintiff “demonstrates that
[he] has some issues getting along with people and maintaining friendships,” he “is
able to interact independently, appropriately, effectively, and on a sustained basis
with other individuals. Particularly, the claimant can shop in stores around other
customers, live with friends, and go to the movie theater and library.” Tr. 23. ALJs
may discredit a plaintiff’s testimony regarding alleged limitations in social function
when those limitations are contradicted by a claimant’s daily activities. See Molina
674 F.3d at 1113.

The record supports the ALJ’s findings that plaintiff’s daily

activities detract from his claims of mental limitations.
However, the ALJ erred when she used plaintiff’s daily activities to discredit
plaintiff’s testimony about his physical limitations. The ALJ found that plaintiff had
only mild limitations in physical functioning because he could “engage in activities of
daily living in an appropriate and effective manner, on an independent and sustained
basis.” Tr. 23. Specifically, the ALJ mentioned that plaintiff could “ride his bicycle
into town, travel outside of his home independently, tend to his personal care needs
without special reminders, care for his cat, prepare simple meals, clean, make his
bed, and do laundry.” Id. As such, the ALJ found that plaintiff’s claimed limitations
regarding standing, walking, and squatting were not as severe as alleged. Tr. 25.

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The Court finds that the ALJ failed to specify how claimant’s daily activities
contradicted his alleged limitations and failed to provide sufficient evidence of such
contradictions. For instance, plaintiff testified that at the end of his time working
forty hours a week at the fairgrounds in 2013, he “couldn’t even walk a few steps
without really severe pain.” Tr. 59, 272. The ALJ found his alleged inability to walk
contradicted by his statements from around the same time that he leaves the house
daily and cleaned his home. Tr. 294; compare Tr. 59, 245, 291, 296 with Tr. 246, 292,
294, 295, 297. However, the ALJ did not explain how that testimony contradicted his
alleged physical limitations. Additionally, the ALJ did not sufficiently develop the
record to include evidence supporting a contradiction between plaintiff’s testimony.
For example, the ALJ did not ask how long plaintiff spent on daily outings or cleaning
the house. There is a wide disparity between the physical exertion and stress put on
the body during an eight-hour workday and during short outings into town. The
ALJ’s decision similarly lacks either an explanation of how a daily activity conflicted
with an alleged limitation or substantial evidence that a conflict actually exists are
present for each of plaintiff’s alleged physical limitations addressed in the decision.
Accordingly, the ALJ erred in rejecting plaintiff’s physical limitation testimony based
on his reported daily activities.
The ALJ also reasoned that the objective medical findings “fail to provide
strong support for the claimant’s allegations of disabling symptoms and limitations,”
and that they do not support the existence of limitations greater than those in the
RFC. Tr. 25. An ALJ may reject a claimant’s allegations if his “statements at [the]

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hearing do not comport with objective evidence in [the] medical record.” Bray v.
Comm’r of Soc. Sec. Admin ., 554 F.3d 1219, 1227 (9th Cir. 2009). However, “simply
stat[ing] [a] non-credibility conclusion and then summariz[ing] the medical evidence
supporting [the] RFC determination” is not sufficient to pass the clear and convincing
threshold. Brown-Hunter v. Colvin , 806 F.3d 487, 494 (9th Cir. Nov. 3, 2015); see
also, Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014) (holding that the ALJ
committed legal error because he “never connected the medical record to Claimant’s
testimony” nor made “a specific finding linking a lack of medical records to Claimant’s
testimony about the intensity of her . . . pain” (emphasis added)). Here, the ALJ
specifically noted that plaintiff has a left shoulder sprain, lumbar spine degenerative
disc disease, thoracic lumbosacral radiculitis status post laminectomy, and major
depressive disorder. Tr. 25–27.
Regarding plaintiff’s depression, the ALJ observed that plaintiff reported “a
depressed mood with anxiety, irritability, tearfulness, somatic complaints, low selfesteem, social isolation, loneliness, poor sleep, compulsive behaviors, difficulties
completing simple tasks, loss of motivation, severe fatigue, hopelessness, suicidal
ideation, concentrating difficulties, and poor memory.” Tr. 26. However, the ALJ
concluded that the medical record suggested that these reported symptoms were not
as severe as plaintiff alleged. The ALJ found that the medical record showed that
plaintiff was “alert, oriented, appropriate, pleasant, cooperative, and well-groomed
with appropriate eye contact, normal mood and affect, good attention and
concentration, intact recent and remote memory, normal speech and language,

Page 21 – OPINION AND ORDER

appropriate thought content, appropriate judgment and insight, and adequate fund
of knowledge.” Tr. 27 (citing Tr. 349, 359, 439, 565).
Regarding plaintiff’s lumbar spine degenerative disc disease and thoracic
lumbosacral radiculitis status post laminectomy, the ALJ identified discrepancies
between plaintiff’s alleged limitations pre-back surgery and the medical records from
the same time. Tr. 26. The ALJ reasoned that even though there were limitations
during the period right before plaintiff’s first back surgery until his second back
surgery, the medical record indicates that plaintiff made “nice progress” and that
plaintiff self-reported “significant improvement with functional activities throughout
the day with decreased pain.” Tr. 26. This evidence directly contradicts plaintiff’s
hearing testimony where he reports pain immediately upon standing and great
limitations on how long he can walk before resting. Tr. 64.
As discussed above, the ALJ erred in discrediting plaintiff’s testimony of
physical limitations based on his daily activities. Although the ALJ did not err in
reasoning that the objective medical evidence does not support the level of physical
limitation claimed by plaintiff, “the Commissioner may not discredit the claimant’s
testimony as to the severity of symptoms merely because they are unsupported by
objective medical evidence.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
Therefore, the Court cannot conclude that the ALJ would have reached the same
result had she not erroneously concluded that plaintiff’s daily activities were
inconsistent with his testimony about his limited ability to walk without pain or rests,
and the ALJ’s error was not harmless. Molina, 674 F.3d at 1115 (errors made by the

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ALJ are considered harmless where the court concludes “that the ALJ would have
reached the same result absent the error” and the error is “inconsequential to the
ultimate nondisability determination”).
IV.

Type of Remand
Plaintiff asks that the court remand her case for an immediate award of

benefits. The Ninth Circuit precludes a district court from remanding a case for an
award of benefits unless certain prerequisites are met. Burrell, 775 F.3d at 1141.
Under the three-step “credit-as-true” doctrine, the reviewing court must first
determine whether the ALJ committed harmful legal error. Dominguez v. Colvin,
808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5. 2016). Second, if the court
finds such an error it must “review the record as a whole and determine whether it is
fully developed, free from conflicts and ambiguities, and all essential factual issues
have been resolved.”

Id. (quotation marks omitted).

Third, if the court does

determine that the record has been fully developed, and there are no outstanding
issues left to be resolved, the court must consider whether “the ALJ would be required
to find the claimant disabled on remand if the improperly discredited evidence were
credited as true.” Id. (quotation marks omitted).
Here, the first step is satisfied because the ALJ improperly discredited
plaintiff’s subjective symptom testimony by determining that his daily activities
conflicted with his alleged limitations.
However, step two is not met because the record is not fully developed and still
contains ambiguities regarding whether or not plaintiff’s daily activities conflict with

Page 23 – OPINION AND ORDER

his alleged limitation. For instance, it is unclear how long plaintiff’s outings to town,
the library, and theatre were and much time plaintiff spent sitting and walking
during these trips. Additionally, it is unclear from the record whether plaintiff’s
impairments would have inhibited him from riding a bike. On remand, the ALJ shall
reevaluate plaintiff’s alleged physical limitations and conduct any proceedings
necessary to resolve ambiguities relating to plaintiff’s alleged limitations and his
daily activities.
CONCLUSION
The Commissioner’s decision is REVERSED and REMANDED for further
proceedings.
IT IS SO ORDERED.
Dated this ______ day of ____________2020.
31st
March

/s/Ann Aiken
_______________________________
Ann Aiken
United States District Judge

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