Anderson v. Colvin

Filing 25

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT granting in part and denying in part 17 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)

1
2
3
4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

5
6
7

MICHAEL ANDERSON,
Plaintiff,

8

v.

9
10
11

CAROLYN COLVIN, Commissioner of
Social Security,

No.: 4:15-CV-5091-EFS
ORDER GRANTING IN PART AND DENYING
IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND DENYING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

Defendant.

12
13

Before the Court are cross motions for summary judgment.

14
15

ECF Nos. 17 & 23. Plaintiff Michael Anderson appeals the denial of

16

benefits by the Administrative Law Judge (ALJ). ECF No. 17. Mr. Anderson

17

contends the ALJ erred because she (1) accepted the opinion of the

18

medical expert, but did not discuss and accept all of his opinions; (2)
19

erred in evaluating the opinions of the treating physician; (3) erred in
20

determining that Mr. Anderson could perform past relevant work; and (4)
21
22

improperly discredited Mr. Anderson’s symptom testimony. ECF No. 17. The

23

Commissioner of Social Security (“Commissioner”) asks the Court to affirm

24

the ALJ’s decision that Mr. Anderson is capable of performing past

25

relevant work. ECF No. 23. After reviewing the record and relevant

26

authority, the Court is fully informed. For the reasons set forth below,

27

the Court remands for further proceedings.

28

/
ORDER - 1

1

A.

Statement of Facts1

2

Mr. Anderson was born in 1971. Transcript of admin. hrg. (“Tr.”)

3

at 30. He completed high school and two years of college. Tr. at 30. Mr.

4

Anderson

has

been

diagnosed

with

a

number

of

physical

conditions

5

including degenerative disc disease, narrow foramenal stenosis of the
6

neck, chronic neck and shoulder pain, congenital hypoplasia of the right
7

thumb, right wrist pain stemming from a previous right wrist fracture,
8
9

and right carpal tunnel syndrome. Tr. at 6–8, AR 301–559. Mr. Anderson

10

manages his pain using a variety of medications including Hydrocodone,

11

Flexeril (muscle relaxant), and Naproxyn (anti-inflammatory). Tr. at 20.

12

Mr. Anderson also uses a heating pad and massage wand daily for his neck

13

pain and attends physical therapy for his neck and wrist. Tr. at 16–17,

14

20. Mr. Anderson needs to lie down and take at least one nap daily to

15

relax his neck. Tr. at 21–22.

16

According

to

Mr.

Anderson’s

own

testimony,

he

experiences

17

significant neck pain on a daily basis. Tr. at 18 (rating his average
18

daily pain at six or seven on a scale of ten). He notes that his neck
19
20

and shoulder muscles cramp when he stands for long periods of time and

21

lifting

anything

22

explains that he has a limited range of motion in his neck and even

23

sitting

24

deformity and wrist pain, Mr. Anderson also struggles to pick up objects

25

with his right hand and has pain in his right wrist every day. Tr. at

causes

increases

his

neck

to

his

pain.

stiffen.

Tr.

Tr.

at

at

17.

19.

Mr.

Due

Anderson

to

his

also

thumb

26
1

The

facts

are

only

briefly

summarized.

Detailed

facts

are

27

contained in the administrative hearing transcript, the ALJ’s decision,
28

the parties’ briefs, and the underlying records.
ORDER - 2

1

15–17. Due to his pain, Mr. Anderson reports that he can no longer work

2

like he used to or engage in recreational activities, such as playing

3

basketball, with his children. Tr. at 18. He claims that he would only

4

be able to sit or stand at a job for 30 minutes before needing a break.

5

Tr. at 19. Mr. Anderson does note, however, that he sometimes goes to
6

the park with his daughter. Tr. at 21. In his Function Reports, Mr.
7

Anderson reported being able to shop occasionally, take the garbage out,
8
9
10

do

laundry,

socialize

with

family,

read,

and

watch

television.

Administrative Record (AR) at 231–33.

11

Mr. Anderson has some employment history. Tr. at 58–61. He worked

12

retail at Costco from 1999 to 2005. AR at 253. Then, from 2005 to 2010,

13

Mr. Anderson worked in a variety of positions, including as a phone

14

operator, a construction laborer, a quality control worker at a food

15

production company, and a janitor at a retirement home. AR at 253–63;

16

Tr. at 58–61. Mr. Anderson reports encountering problems at his last job
17

as a food production assembly line worker because he requested too many
18

breaks. Tr. at 54. Mr. Anderson has not worked since November 2010. AR
19
20
21

at 253.
B.

Procedural History

22

On March 12, 2012, Mr. Anderson protectively filed for Disability

23

Insurance Benefits and Supplemental Insurance Benefits. AR at 170-185.

24

His alleged onset date is November 1, 2010. AR at 170, 177. On July 5,

25

2012, Mr. Anderson’s claim was denied. AR at 119–22. On October 24,

26

2012, reconsideration was denied. AR at 127–28.

27

On May 8, 2014, a hearing was held before ALJ Marie Palachuk. AR
28

36. Mr. Anderson; Anthony Francis, an independent medical expert; and K.
ORDER - 3

1

Diane Kramer, an independent vocational expert, testified. AR at 36. The

2

ALJ determined that Mr. Anderson has the severe impairments of cervical

3

spine degenerative disc disease with resulting chronic pain, status post

4

right wrist fracture, and recent right-side carpal tunnel repair. AR at

5

23. The ALJ determined, however, that Mr. Anderson’s impairments do not
6

meet or medically equal the severity of any listed impairments. AR at
7

26. Despite his impairments, the ALJ also ultimately found that Mr.
8
9

Anderson has the residual functional capacity to perform light work,

10

except that he is further limited to (1) occasional lifting and carrying

11

of up to 20 pounds and frequent lifting and carrying of up to 10 pounds;

12

(2) standing and walking, with breaks, for only about six hours in an

13

eight-hour workday; (3) sitting, with normal breaks, for about six hours

14

in an eight-hour workday; (4) frequent climbing of ramps and stairs,

15

balancing, stooping, kneeling, crouching, and crawling; (5) occasional

16

climbing

of

ropes,

ladders,

or

scaffolds;

(6)

occasional

reaching

17

overhead bilaterally; (7) occasional right non-dominant hand fingering
18

and

handling;

and

(8)

avoiding

concentrated

exposure

to

temperature

19
20

extremes and hazardous situations. AR at 26.
Based on this assessment, the testimony of the vocational expert,

21
22

and

23

concluded

24

production worker and survey worker, and is therefore not disabled as

25

defined by the Social Security Act. AR at 29.

26

Mr.

Anderson’s
Mr.

age,

Anderson

education,

can

perform

and
past

work

experience,

relevant

work

as

the

ALJ

a

food

On May 27, 2014, the Appeals Council denied review of the ALJ’s

27

decision. AR at 1–3. Mr. Anderson then filed this lawsuit, appealing the
28

ORDER - 4

1

ALJ’s decision. ECF No. 3. Subsequently, the parties filed the instant

2

summary judgment motions. ECF Nos. 17 & 23.

3

C. Disability Determination

4

A

“disability”

is

defined

as

the

“inability

to

engage

in

any

5

substantial gainful activity by reason of any medically determinable
6

physical or mental impairment which can be expected to result in death
7

or which has lasted or can be expected to last for a continuous period
8
9

of

not

less

than

twelve

10

1382c(a)(3)(A).

The

11

evaluation

12

months.”

to

maker

U.S.C.

determine

uses

whether

a

§§

423(d)(1)(A),

C.F.R. §§ 404.1520, 416.920.

process

decision

42

a

five-step

claimant

is

sequential

disabled.

20

13

Step one assesses whether the claimant is engaged in substantial

14

gainful activities during the relevant period. If he is, benefits are

15

denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision

16

maker proceeds to step two.
17

Step

two

assesses

whether

the

claimant

has

a

medically

severe

18

impairment

or

combination

of

impairments.

20

C.F.R.

§§

404.1520(c),

19

416.920(c).

If

the

21

combination

of

impairments,

22

impairment is severe, the evaluation proceeds to the third step.

20

claimant

does
the

not

have

disability

a

severe

claim

is

impairment
denied.

If

or
the

23

Step three compares the claimant’s impairment with a number of

24

listed impairments acknowledged by the Commissioner to be so severe as

25

to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404

26

Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of

27

the listed impairments, the claimant is conclusively presumed to be
28

ORDER - 5

1

disabled. If the impairment does not meet or equal one of the listed

2

impairments, the evaluation proceeds to the fourth step.

3
4

Step four assesses whether the impairment prevents the claimant
from

performing

work

he

has

performed

in

the

past.

This

includes

5

determining

the

claimant’s

residual

functional

capacity.

20

C.F.R.

6

§§ 404.1520(e),

416.920(e).

If

the

claimant

is

able

to

perform

his

7

previous work, he is not disabled. If the claimant cannot perform this
8
9
10

work, the evaluation proceeds to the fifth step.
Step

five,

15

during

this

in

view

claimant
of

sequential

his

can

see Bowen v. Yuckert, 482 U.S. 137 (1987).
shifts

economy

the

13

proof

national

whether

education, and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f);

of

the

assesses

12

burden

in

step,

perform

The

work

final

11

14

other

the

age,

disability

analysis. The claimant has the initial burden of establishing a prima

16

facie case of entitlement to disability benefits. Rhinehart v. Finch,
17

438 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if he
18

establishes

that

a

physical

or

mental

impairment

prevents

him

from

19
20

engaging in his previous occupation. The burden then shifts to the

21

Commissioner to show (1) the claimant can perform other substantial

22

gainful activity, and (2) a “significant number of jobs exist in the

23

national economy” that the claimant can perform. Kail v. Heckler, 722

24

F.2d 1496, 1498 (9th Cir. 1984). A claimant is disabled only if his

25

impairments are of such severity that he is not only unable to do his

26

previous work, but cannot — considering his age, education, and work

27

experience — engage in any other substantial gainful work that exists in
28

the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
ORDER - 6

1

D.

Standard of Review

2

On review, a court considers the record as a whole, not just the

3

evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d

4

20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526

5

(9th Cir. 1980)). A court must uphold the ALJ’s determination that the
6

claimant is not disabled if the ALJ applied the proper legal standards
7

and there is substantial evidence in the record as a whole to support
8
9

the decision. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983)

10

(citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs.,

11

839 F.2d 432, 433 (9th Cir. 1987) (recognizing that a decision supported

12

by substantial evidence will be set aside if the proper legal standards

13

were not applied in weighing the evidence and making the decision).

14

Substantial

15

evidence

is

more

than

a

mere

scintilla,

Sorenson

v.

Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less than a

16

preponderance, McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir.
17

1989); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576
18

(9th Cir. 1988). “It means such relevant evidence as a reasonable mind
19
20

might

accept

as

adequate

to

support

a

conclusion.”

Richardson

v.

21

Perales, 402 U.S. 389, 401 (1971) (citations omitted). Any inferences

22

and conclusions that the ALJ may reasonably draw from the evidence will

23

also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). A

24

court

25

interpretations exist. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.

26

must

1984).

27

//
28

/
ORDER - 7

uphold

the

ALJ’s

decision,

even

if

other

rational

1

E. Analysis

2
3

The Court addresses each of Mr. Anderson’s challenges to the ALJ’s
decision.

4

1.

Medical Expert - Dr. Francis

5

Mr. Anderson contends that the ALJ erroneously failed to address
6

parts of Dr. Francis’s testimony, despite the ALJ’s acceptance of Dr.
7

Francis’s testimony in full. ECF No. 17 at 4–5.
8

The ALJ assigned “significant weight” to Dr. Francis’s opinions

9
10

because he had an opportunity to objectively review all of the medical

11

evidence

12

orthopedic surgeon, and his opinion was generally consistent with all

13

treating and examining opinions in the medical record. AR at 28. The ALJ

14

noted

15

in

that

the

the

record,

only

specialized

opinion

in

the

in

the

record

relevant

that

area

differed

as

an

from

Dr.

Francis’s was that of Dr. Prakash, Mr. Anderson’s treating physician.

16

AR at 28.
17

As

a

general

rule,

the

ALJ

“need

not

discuss

all

evidence

18

presented

to

her,”

but

“she

must

explain

why

significant

probative

19
20

evidence has been rejected.” Vincent v. Heckler, 739 F.2d 1393, 1394–95

21

(9th Cir. 1984) (internal quotation marks omitted). When the ALJ accepts

22

portions of a medical opinion, but rejects other portions, she must

23

provide an explanation for the variable treatment. Craig v. Astrue, 269

24

F. App’x 710, 712 (9th Cir. 2008) (rejecting the ALJ’s credibility

25

determination

26

medical]

in

opinion

part
was

because

“the

persuasive

in

ALJ

offered

no

one

regard,

reason

but

not

why

the

[the

other”

27

(citing Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004));
28

Switzer
ORDER - 8

v.

Heckler,

742

F.2d

382,

385–86

(7th

Cir.

1984)

(“[T]he

1

Secretary’s attempt to use only the portions [of a report] favorable to

2

her position, while ignoring other parts, is improper.”). “The ALJ is

3

not entitled to pick and choose from a medical opinion, using only those

4

parts that are favorable to a finding of nondisability.” Robinson, 366

5

F.3d at 1083.
6

Mr. Anderson argues that the ALJ improperly failed to consider
7

portions of Dr. Francis’s opinions, despite giving significant weight to
8
9

his testimony and opinion as a whole. ECF No. 17 at 10–11. Specifically,

10

Dr. Francis testified on cross-examination that he did not disagree with

11

another professional’s opinion in the record that Mr. Anderson may need

12

to miss up to three days of work per month and would need to lie down

13

occasionally during the day due to pain. Tr. at 14. When asked about the

14

opinion, Dr. Francis stated:

15

17

“I mean that can be reasonable. I mean we’re looking at a
document that’s almost a year old now. That apparently was
that doctor’s opinion. I don’t have any reason to disagree
with it though at that time.”

18

Tr. at 14. This statement alone may not carry significant force due to

19

its equivocal nature, but the findings regarding Mr. Anderson’s need to

16

20

miss work and need to lie down were essential to the vocational expert’s

21

determination that Mr. Anderson could perform past relevant work. Tr. at
22

31–32. When questioned about whether an individual with Mr. Anderson’s
23

impairments could maintain employment if he needed to miss two or more
24
25
26
27

days of work per month, the vocational expert indicated that such a
person could not sustain competitive employment:
Claimant’s Attorney:

28

ORDER - 9

Ms. Kramer, if an individual were to
miss work, due to their impairments, how
many days could they miss per month and

still be able to sustain competitive
employment?

1
2

Vocational Expert:

And if it’s two or more per month, then
they’re most likely not going to be able
to sustain competitive employment?

Vocational Expert:

4

Usual and customary is up to one per
month within unskilled labor.

Claimant’s Attorney:

3

Correct.

5
6
7

Tr. at 31. The vocational expert further indicated that lying down during
8
9

the workday would not be tolerated in a work environment. Tr. at 32.

10

Because Dr. Francis’s statement regarding Mr. Anderson’s need to

11

miss work and lie down throughout the day, in combination with the

12

vocational expert’s testimony, was significant probative evidence of Mr.

13

Anderson’s

14

Anderson’s disability, the ALJ was required to provide a reason for

15

rejecting

inability

that

to

portion

maintain

of

Dr.

employment

Francis’s

and,

thereby,

testimony.

The

of

ALJ

Mr.

gave

16

significant weight to Dr. Francis’s testimony and opinion generally. AR
17

at 28. Thus, without refuting — or at least acknowledging — Dr. Francis’s
18

statement that it was possible Mr. Anderson would need to miss work and
19
20

lie down throughout the day, there was no substantial evidence for the

21

ALJ

to

reasonably

conclude

that

Mr.

Anderson

was

able

to

maintain

22

employment, and the ALJ’s findings indicate she may have engaged in

23

impermissible cherry-picking. See Craig, 269 F. App’x at 712.

24

Therefore, the Court remands the case back to the ALJ to determine

25

whether Mr. Anderson would need to miss work more than one day a month

26

or lie down throughout the day due to his impairments and, if so,

27

whether Mr. Anderson is disabled.
28

ORDER - 10

1

2.

2

Mr. Anderson contends that the ALJ failed to properly consider the

3

Treating Physician Dr. Prakash

opinion of his treating physician, Dr. Prakash. ECF No. 17 at 12–13.

4

The ALJ assigned “some weight” to Dr. Prakash’s opinions because

5

he was a treating source and his opinion was consistent with other
6

opinions that Mr. Anderson could work at light levels, but had some
7

right hand limitations. AR at 28. The ALJ noted that Dr. Prakash’s
8
9

opinion indicated Mr. Anderson could only lift and carry two pounds with

10

his right upper extremity, but could carry 20 pounds with his left upper

11

extremity and that Mr. Anderson could stand for six hours in an eight-

12

hour workday. AR at 28.

13

There are three type of physicians: treating physicians, examining

14

physicians, and nonexamining physicians. Lester v. Chater, 81 F.3d 821,

15

830 (9th Cir. 1995). “As a general rule, more weight should be given to

16

the opinion of a treating source than to the opinion of doctors who do
17

not treat the claimant.” Id. The ALJ must provide “clear and convincing”
18

reasons for rejecting a treating or examining physician’s opinions and
19
20

may not reject such opinions without providing “specific and legitimate

21

reasons” supported by substantial evidence in the record for so doing.

22

Id.

23

Mr. Anderson argues that the ALJ improperly failed to credit the

24

opinion of Dr. Prakash without meeting the standard required in Lester

25

when the ALJ did not expressly find that Mr. Anderson could only lift two

26

pounds with his right hand. ECF No. 17 at 12–13. As the petitioner notes,

27

however, the ALJ did not reject Dr. Prakash’s opinion. ECF No. 17 at 12–
28

13. In fact, it is not clear that the ALJ’s findings are inconsistent
ORDER - 11

1

with Dr. Prakash’s opinion. AR at 26. The ALJ found that Mr. Anderson

2

could lift 20 pounds occasionally and 10 pounds frequently, but did not

3

distinguish between Mr. Anderson’s use of his right and left hands. AR at

4

26.

5

Mr. Anderson contends that the ALJ’s failure to distinguish between
6

the functioning of Mr. Anderson’s hands was problematic because the ALJ’s
7

hypothetical given to the vocational expert did not differentiate between
8
9

Mr. Anderson’s ability to lift with each hand. It is true that “the

10

hypothetical posed must include ‘all of the claimant’s functional

11

limitations, both physical and mental’ supported by the record.” Thomas

12

v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). Although the hypothetical

13

did not distinguish between Mr. Anderson’s ability to lift with each

14

hand, the ALJ accounted for the different functioning levels of Mr.

15

Anderson’s hands by including limitations on Mr. Anderson’s ability to

16

handle and finger with the right hand. Tr. at 30–31.
17

Accordingly, the Court finds that the ALJ did not err with respect
18

to her consideration of Dr. Prakash’s opinion and that the ALJ’s
19
20
21

hypothetical given to the vocational expert adequately described Mr.
Anderson’s impairments.

22

3.

Past Relevant Work Analysis

23

Mr. Anderson also contends that in addition to the stage four

24

errors

25

committed factual and legal errors in evaluating whether Mr. Anderson

26

in

the

ALJ’s

analysis

outlined

above

in

Section

1,

the

ALJ

had past relevant work to which he could return. ECF No. 17 at 14–17.

27

Mr. Anderson claims that the two jobs identified by the vocational
28

expert as jobs to which Mr. Anderson could return — food production
ORDER - 12

1

worker and survey worker — are not qualifying past relevant work because

2

they were not performed at “substantial gainful activity levels.” ECF

3

No. 17 at 14.

4

In order for a position to qualify as substantial gainful activity

5

in

2009

and

2010

—

the

years

Mr.

Anderson

was

working

as

a

food

6

production worker or survey worker — an individual had to earn $980 per
7

month

and

$1000

per

month,

respectively,

in

that

position.

Social

8
9

Security

Administration,

Program

Operations

Manual

Systems,

Tbl.

DI

10

10501.015. To assess whether a position constitutes substantial gainful

11

activity, the Social Security Administration Operations Manual notes

12

that in calculating gross earning, it is essential to: “Develop enough

13

evidence to determine the actual period worked and the earnings for that

14

period.”

15

Social

Security

Administration,

Program

Operations

Manual

Systems, DI 10505.001(B)(1).

16

Mr.

Anderson

argues

that

he

did

not

earn

enough

as

a

food

17

production worker or survey worker to meet the earning requirement for
18

substantial gainful activity. ECF No. 17 at 14–17. The Commissioner
19
20

seems to concede that Mr. Anderson’s former position as a survey worker

21

did not qualify as substantial gainful activity. ECF No. 23 at 11–13.

22

The Commissioner contests, however, whether the food production worker

23

position qualifies. ECF No. 23 at 11–13.

24
25
26

The

record

contains

conflicting

reports

about

how

long

Mr.

Anderson worked as a food production worker. Mr. Anderson worked in that
position

as

part

of

his

employment

with

a

temp

agency,

Manpower

27

International Inc. According to Mr. Anderson’s work history report, he
28

worked at the temp agency from June 2008 through September 2010. AR 253.
ORDER - 13

1

In another filing, Mr. Anderson noted that during his time with the temp

2

agency he worked “mostly at Lamb Weston quality control packaging hash

3

browns” but also worked other jobs. AR 255. In his testimony before the

4

ALJ, Mr. Anderson indicated that he worked at Lamb Weston for only 90

5

days total. Tr. at 59. Mr. Anderson’s earning statements from Manpower
6

International do not distinguish between different job placements and
7

include only a total for each year of employment with the agency. AR
8
9

190-92.

10

When calculating his average monthly earnings while working at

11

Lamb Weston, Mr. Anderson divided the total amount earned at Manpower

12

for

13

International

14

determined that he earned $213.16 per month in 2009 and $207.50 per

15

each

year

by

that

the

number

year.

of

Using

months

such

a

he

worked

for

Manpower

calculation,

Mr.

Anderson

month in 2010. ECF No. 17 at 16. The Commissioner used a different

16

calculation, dividing the total amount Mr. Anderson earned at Manpower
17

International

from

2009

and

2010

by

the

three

months

Mr.

Anderson

18

testified that he worked at Lamb Weston. ECF No. 23 at 12. Using this
19
20
21

calculation, the Commissioner determined that Mr. Anderson earned $1,475
per month during his time at Lamb Weston. ECF No. 23 at 12.

22

Both of these methods of calculation are flawed. Without knowing

23

which time periods Mr. Anderson spent working at Lamb Weston, rather

24

than at Manpower International generally, it is impossible to determine

25

the amount of his Manpower International earnings that are attributable

26

to his work at Lamb Weston. Moreover, as demonstrated by the significant

27

discrepancy between Mr. Anderson’s calculation and the Commissioner’s
28

calculation, it is impossible to determine how much Mr. Anderson earned
ORDER - 14

1

per month during his time at Lamb Weston without evidence of how long

2

Mr.

3

incomplete evidence in the record, it is impossible to determine whether

4

Mr.

Anderson

Anderson’s

actually

position

worked

as

a

there.

food

With

the

production

contradicting

worker

and

qualified

as

5

substantial gainful activity.
6

Therefore, the Court remands the case back to the ALJ to determine
7

how long Mr. Anderson worked at Lamb Weston and how much he earned
8
9

during that time. Then, the ALJ shall determine whether Mr. Anderson’s

10

position as a food production worker qualified as substantial gainful

11

activity.

12

4. Mr. Anderson’s Testimony

13

Mr. Anderson argues the ALJ’s credibility assessment is legally

14
15

insufficient because when the ALJ determined that Mr. Anderson was not
fully credible, she did not demonstrate that the medical evidence was

16

inconsistent with Mr. Anderson’s testimony or that Mr. Anderson’s
17

activities were inconsistent with his claims.
18

A two-step analysis is used by the ALJ to assess whether a
19
20

claimant’s testimony regarding subjective pain or symptoms is credible.

21

Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Step one requires

22

the ALJ to determine whether the claimant presented objective medical

23

evidence of an impairment that could reasonably be expected to produce

24

some degree of the pain or other symptoms alleged. Lingenfelter v.

25

Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d

26

1273, 1282 (9th Cir. 1996). Objective medical evidence of pain or

27

fatigue, or the severity thereof, need not be provided by the claimant.
28

Garrison, 759 F.3d at 1014.
ORDER - 15

1

If the claimant satisfies the first step of this analysis, and

2

there is no evidence of malingering, the ALJ must accept the claimant’s

3

testimony about the severity of his symptoms unless the ALJ provides

4

specific, clear, and convincing reasons for rejecting the claimant’s

5

testimony. Id. An ALJ is not “required to believe every allegation of
6

disabling pain” or other non-exertional impairment. Orn v. Astrue, 495
7

F.3d 625, 635 (9th Cir. 2007). To discredit a claimant’s testimony when a
8
9

medical impairment has been established, however, the ALJ must provide

10

specific, cogent reasons for the disbelief. Id. Factors that an ALJ may

11

consider in weighing a claimant’s credibility include reputation for

12

truthfulness, inconsistencies in testimony or between testimony and

13

conduct, daily activities, and unexplained, or inadequately explained,

14

failure to seek treatment or follow a prescribed course of treatment. Id.

15

Here, the ALJ found that Mr. Anderson did suffer from severe

16

musculoskeletal impairments and recognized that his impairments could
17

cause the alleged symptoms. AR at 26–27. She then determined, however,
18

that Mr. Anderson’s statements concerning the intensity, persistence, and
19
20

effects of his symptoms were not fully credible. AR at 27. The ALJ

21

explained that the medical opinions did not support the level of

22

limitation alleged by Mr. Anderson because the opinions supported an

23

ability to perform light work. AR at 27. In addition, the ALJ concluded

24

that Mr. Anderson’s reported activities of daily living did not support

25

the level of limitation claimed because Mr. Anderson “cares for his

26

children and accompanies his daughter on outings to the park,” and he

27

submitted Function Reports indicating that he could “cook simple meals,
28

ORDER - 16

1

shop, do laundry, socialize, read, and likes to watch sports related

2

television.” AR at 27.

3
4

The explanation provided by the ALJ for rejecting Mr. Anderson’s
testimony does not include the kind of “clear, convincing, and specific

5

reason[s]” required to discredit a social security claimant. Garrison,
6

759 F.3d at 1016. The ALJ did not explain how Mr. Anderson’s claims
7

differed from the level of functioning described by the medical opinions,
8
9

stating only “claimant’s subjective complaints are partially credible

10

because medical opinions addressed above do not support the level of

11

limitations alleged.” The ALJ noted an inconsistency with the physical

12

therapist’s opinion that Mr. Anderson could perform light to medium work,

13

AR at 27, but subsequently noted that she was giving the physical

14

therapist’s opinion “little weight.” AR at 28. The ALJ also cited to

15

opinions by Dr. Francis and Dr. Valencia that Mr. Anderson could perform

16

light work as evidence of inconsistency, AR at 27, but the ALJ later
17

noted that she only gave Dr. Valencia’s opinion “some weight” because it
18

was “silent as to any residual right hand limitations which discounts its
19
20

probative value in this case.” AR at 28. Accordingly, if Mr. Anderson’s

21

alleged severity of symptoms was inconsistent with the opinions of the

22

physical therapist and Dr. Valencia, given the low weight attributed to

23

each expert’s opinion it is unclear that such an inconsistency is

24

sufficient to discredit Mr. Anderson.

25
26

Although the ALJ gave Dr. Francis’s opinion significant weight, it
is important to note that Dr. Francis did not unequivocally state that a

27

light level of work was appropriate. Dr. Francis stated: “Most RFCs
28

[residual functional capacities] in a chronic pain case are going to fall
ORDER - 17

1

either light, sedentary or less than sedentary.” Tr. at 8. Dr. Francis

2

concluded that “probably a light RFC would be appropriate here, but I’m

3

willing to discuss it.” Tr. at 9. It is therefore unclear whether there

4

is a meaningful inconsistency between Dr. Francis’s opinion and Mr.

5

Anderson’s testimony so as to justify discrediting Mr. Anderson.
6

It is also unclear that Mr. Anderson’s described daily activities
7

are inconsistent with the level of impairment alleged. While the ALJ
8
9

stated that Mr. Anderson could “cook simple meals,” Mr. Anderson

10

specifically noted in his Function Report that he did not cook at all,

11

stating: “[I]t is painful to stand over the stove for a long period of

12

time, so my mother prepares all the meals.” AR at 231. There is no

13

contradictory evidence in the record to suggest that Mr. Anderson cooks.

14

In addition, the ALJ noted that Mr. Anderson cares for his children, but

15

there is no indication in the record that Mr. Anderson performs childcare

16

activities. Mr. Anderson indicated that he lives alone and does not
17

reside with his children. AR at 178. In his Function Report, Mr. Anderson
18

reported that he does not care for any children. AR at 230. Mr. Anderson
19
20
21
22

testified that he is no longer able to play with his sons, but did not
say anything regarding care of his children. Tr. at 18.
Mr. Anderson did indicate in his testimony that he walks with his

23

daughter to the park occasionally, Tr. at 21, but that is not

24

inconsistent with his Function Report statement that he can walk about a

25

half of a mile before resting and then only needs to rest for five

26

minutes. AR at 234. Mr. Anderson also indicated in his Function Reports

27

that he could take the garbage out and does laundry, but that it “takes
28

[him] a little longer than it use to” and he only performs those
ORDER - 18

1

activities about twice a week. AR at 231. Mr. Anderson indicated the he

2

does not do any other housework “like dishes or yardwork” because

3

“standing and movement in neck is too painful to do for an extended

4

period.” AR at 232. Mr. Anderson also indicated that he shops, but only

5

once a month for about an hour. AR at 232. Although Mr. Anderson also
6

indicated that he likes to read and watch sports on television, he also
7

noted that he has to take breaks from those activities in order to “give
8
9

[his] neck a rest from being in one position.” AR at 233. Mr. Anderson

10

also testified that he needs to nap at least once a day and massage his

11

neck throughout the day in order to relax his neck muscles. Tr. at 21–22.

12

It is important to recognize that “many home activities may not be

13

easily transferable to a work environment where it might be impossible to

14

rest periodically or take medication.” Smolen, 80 F.3d at 1284 n.7; see

15

also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home

16

activities are not easily transferable to what may be the more grueling
17

environment of the workplace[.]”). “[I]mpairments that would
18

unquestionably preclude work and all the pressures of a workplace
19
20

environment will often be consistent with doing more than merely resting

21

in bed all day.” Garrison, 759 F.3d at 1016. Accordingly, the ability to

22

perform some tasks that are consistent with tasks performed at a job does

23

not necessarily mean that an individual is able to perform those tasks on

24

a consistent basis in a work environment.

25
26

In this case, Mr. Anderson’s described activities — doing laundry
twice a week, taking out the trash twice a week, shopping once a month,

27

reading and watching television with periodic breaks, and occasionally
28

taking his daughter to the park — do not necessarily demonstrate an
ORDER - 19

1

ability to work eight hours a day in a work environment. As discussed

2

above in Section 1, Mr. Anderson would not be able to take frequent

3

breaks or naps at work. His ability to perform tasks twice a week is not

4

evidence of an ability to perform similar tasks repeatedly throughout the

5

day. The Commissioner claims that Mr. Anderson’s testimony regarding
6

difficulty using his right hand is inconsistent with doing laundry, ECF
7

No. 23, at 7, but there is no evidence that Mr. Anderson uses his right
8
9

hand when doing laundry. The Commissioner also argues that Mr. Anderson’s

10

ability to accompany his daughter to the park is inconsistent with his

11

claim that he has difficulty sitting or standing for more than 30

12

minutes, ECF No. 23, at 7, but there is no evidence that Mr. Anderson

13

must sit or stand for more than 30 minutes without a break during such

14

outings. Accordingly, the evidence clearly indicates that Mr. Anderson’s

15

described daily activities are consistent with the severity of the

16

symptoms alleged.
17

Therefore, the Court remands the case back to the ALJ to make
18

specific findings as to whether Mr. Anderson’s alleged impairment is
19
20

inconsistent with medical opinions to which the ALJ has given weight and

21

then consider whether Mr. Anderson is disabled, giving appropriate credit

22

to Mr. Anderson’s testimony.

23

C.

24
25
26

Conclusion
For

the

above-given

reasons,

the

Court

remands

the

case

for

further proceedings. Although the Court holds that the ALJ erred, it is
not clear from the record, as it currently stands, whether Mr. Anderson

27

is disabled or whether he has qualifying past relevant work to which he
28

could return. The ALJ shall consider Dr. Francis’s statement regarding
ORDER - 20

1

Mr. Anderson’s possible need to lie down during the work day or miss

2

work

3

Anderson’s position as a food production worker met the standard for

4

due

to

pain.

In

addition,

the

ALJ

shall

consider

whether

Mr.

substantial gainful activity. The Commissioner has conceded that Mr.

5

Anderson’s position as survey worker did not meet that standard, so an
6

additional consideration of that position is unnecessary. The ALJ shall
7

also

reevaluate

Mr.

Anderson’s

credibility

given

the

Court’s

8
9
10

determination that Mr. Anderson’s daily activities are not inconsistent
with the level of impairment alleged.

11

The Court holds that the ALJ did not fail to properly consider Dr.

12

Prakash’s opinion. Therefore, the ALJ does not need to reevaluate or

13

reweigh that opinion.

14

////

15

////

16

////
17

////
18

////
19
20

////

21

////

22

////

23

////

24

////

25

////

26

///

27

//
28

/
ORDER - 21

1

Accordingly, IT IS HEREBY ORDERED:

2

1.

3
4

Mr. Anderson’s Motion for Summary Judgment, ECF No. 17, is
GRANTED IN PART and DENIED IN PART.

2.

The Commissioner’s Motion for Summary Judgment, ECF No. 23,

5

is DENIED.
6

3.

This matter is REMANDED to the Commissioner for additional

7

proceedings consistent with this Order.
8
9

4.

Anderson.

10
11

The Clerk’s Office is to enter Judgment in favor of Mr.

5.

An application for attorney fees may be filed by separate
motion by Mr. Anderson.

12
13

6.

14

IT IS SO ORDERED. The Clerk’s Office is directed to enter this

15

The case shall be CLOSED.

Order and provide copies to counsel and ALJ Marie Palachuk.

16

DATED this 27th day of September 2016.
17
18

_______s/Edward F. Shea____
EDWARD F. SHEA
Senior United States District Judge

19
20
21
22
23
24
25
26
27
28

Q:\EFS\Civil\2015\5091.ord.grant.p.sj.lc02.docx

ORDER - 22