Clement v. Berryhill

Filing 16

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Hon. Brian A Tsuchida. (AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOHN J. CLEMENT,
Plaintiff,

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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

CASE NO. 17-5057-BAT
ORDER REVERSING THE
COMMISSIONER AND REMANDING
FOR FURTHER PROCEEDINGS

Defendant.

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John J. Clement appeals the ALJ’s decision. The ALJ found mild to moderate lumbar

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degenerative disc disease, bipolar disorder, and schizoaffective disorder are severe impairments;

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Mr. Clement has the residual functional capacity (“RFC”) to perform light work with additional

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non-exertional limitations; and that can perform jobs in the national economy. Tr. 27-32.

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Mr. Clements argues the Court should remand the case for further proceedings because

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the ALJ misevaluated his testimony, and because evidence he submitted to the Appeals Council

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undermines the ALJ’s decision. Dkt. 13 at 1, 14. For the reasons below the Court REVERSES

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the Commissioner’s final decision and REMANDS the matter for further administrative

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proceedings under sentence four of 42 U.S.C. § 405(g).

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DISCUSSION
A.

Mr. Clement’s Testimony

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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The ALJ did not find malingering and was therefore required to provide clear and

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convincing reasons to reject Mr. Clement’s testimony. Smolen v. Chater, 80 F.3d 1273, 1283-84

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(9th Cir. 1996). The ALJ found Mr. Clement’s testimony is inconsistent with the medical record.

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Tr. 29-30. The ALJ noted examining doctor Ryan Bennett, M.D., opined Mr. Clement could lift

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and carry 50 pounds occasionally, and 25 pounds frequently; he could push and pull on a

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frequent basis; he had no standing, walking or sitting restrictions; he could bend, crouch, stoop,

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and crawl frequently and he had no manipulative activity limitations. Tr. 30 (citing Tr. 216). The

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ALJ also noted examining doctor Bong Doan, M.D., opined Mr. Clement can perform simple

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and complex tasks, can complete a normal workweek; and has mild difficulties in handling

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stress. Tr. 30.

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Although these opinions stand in stark contrast to Mr. Clement’s claims1 they are not a

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basis to reject Mr. Clement’s testimony because the ALJ rejected the medical opinions giving

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them “little if any weight,” and instead finding Mr. Clement has “greater limitations than offered

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by these doctor.” Tr. 31. It is unreasonable to reject a claimant’s testimony based upon medical

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evidence the ALJ did not put any stock in.

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The ALJ also found Mr. Clement did not receive the kind of “medical treatment one

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would expect a totally for a totally disabled person.” Tr. 31. This is an erroneous conclusory

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finding. Generalized, conclusory findings do not suffice. See Moisa v. Barnhart, 367 F.3d 882,

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885 (9th Cir.2004) (the ALJ’s credibility findings “must be sufficiently specific to allow a

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reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds

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Mr. Clement averred “my back is always in pain and limits lifting, squatting, bending, standing,
sitting, walking & kneeling”; I can walk for only 15 minutes and can pay attention for only 30-45
minutes; I am scared to around people; people are “out to get me”; and “coworkers/customers are
trying to harm me.” Tr. 170, 175.
ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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and did not arbitrarily discredit the claimant's testimony”) (internal citations and quotations

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omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must

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“specifically identify the testimony [the ALJ] finds not to be credible and must explain what

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evidence undermines the testimony”).

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The Commissioner defends the ALJ’s determination arguing the ALJ’s finding is valid

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because Mr. Clement received only conservative care, Mr. Clement’s medications stabilized or

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improved his symptoms, and Mr. Clement did not consistently seek treatment and did not

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comply with his medications. Dkt. 14 at 4-5. The Court rejects these arguments. The ALJ did not

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explain why the care Mr. Clement received was conservative. Absent any explanation, the ALJ’s

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conclusory statement that Mr. Clement did not receive the kind of treatment one expects a

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disabled person to receive is neither clear nor convincing.

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The ALJ also found Mr. Clement had “good compliance” with prescribed medications,

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Tr. 30, not failure to comply as the Commissioner argues. The Commissioner’s defense does not

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track the ALJ’s reasoning. The ALJ found when Mr. Clement took his medication he reported

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doing “good and well.” Id. However, in assessing mental health issues, the ALJ cannot reject a

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claimant’s testimony where the symptoms wax and wane in the course of treatment. Cycles of

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improvement and debilitating symptoms a typical in mental health cases, and an ALJ cannot

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simply focus on instances of improvement to conclude a claimant is capable of working.

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Garrison v. Colvin, 759 F3d 995, 1017 (9th Cir. 2014). It may be true Mr. Clement functions

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better on medication than when he is off medications. But the record does not establish that with

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medications, he is free and clear of significant functional limitations. This is evidenced by the

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treatment records Mr. Clement submitted after the ALJ issued his decision which note Mr.

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Clement was taking “Lithium” but “continues to have insomnia, mood swings and could benefit

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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from added stabilization with atypical antipsychotic.” Tr. 262. And lastly the Court rejects the

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argument the ALJ properly discounted Mr. Clement’s testimony because he did not consistently

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seek treatment because “it is a questionable practice to chastise one with a mental impairment for

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the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465

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(9th Cir.1996) (citations and quotations omitted).

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The ALJ also rejected Mr. Clement’s testimony as inconsistent with his activities of daily

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living. Tr. 30. The ALJ noted Mr. Clement can make meals, do laundry, bath, shop, go out alone,

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has some good relations with his family and relies on them for transportation. Id. The Ninth

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Circuit has repeatedly asserted the mere fact that a plaintiff has carried on certain daily activities

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does not in any way detract from his credibility as to his overall disability. Orn v. Astrue, 495

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F.3d 625, 639 (9th Cir. 2007 (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)).

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Daily activities that are transferrable to a work setting may be grounds for an adverse credibility

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finding. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). But daily activities that do not

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contradict a claimant’s other testimony or meet the threshold for transferrable work skills cannot

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form the basis of an adverse credibility determination. Orn, 495 F.3d at 639. Here the

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Commissioner does not argue Mr. Clement’s activities are transferrable to a work setting,

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because they plainly are not. Additionally none of the activities contradict Mr. Clement’s

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statements but rather, as the Commissioner notes, are consistent with what Mr. Clement told the

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examining doctors. Dkt. 14 at 5. In short the ALJ improperly penalized Mr. Clement for

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attempting to live a normal life in the face of his limitations. See Cooper v. Bowen, 815 F.2d 557,

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561 (9th Cir. 1987).

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The ALJ further found Mr. Clement made inconsistent statements about his work history.
The Commissioner does not defend this ground. The ALJ found Mr. Clement submitted a

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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disability report to the Agency indicating he had never worked and also submitted a work history

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report listing four jobs he held between 2003 and 2005. Tr. 30 (referring to Tr. 152, 158.).

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Substantial evidence does not support the ALJ’s finding because the disability report is unsigned

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and undated, and Mr. Clement argued to the Appeals Council “[the disability report] was not

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completed by Mr. Clement . . .” Tr. 203. As the ALJ pointed to no evidence establishing Mr.

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Clement actually completed the disability report, and given his claim he did not, substantial

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evidence does not support the ALJ’s determination.
And lastly the ALJ found Mr. Clement’s work activity after the alleged onset date was

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inconsistent with his claim he is disabled. Tr. 30-31. However, the fact a claimant tries to work

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and fails is not a basis to discount his testimony about the severity of his symptoms. Lingenfelter

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v. Astrue , 504 F3d 1028, 1038 (9th Cir. 2007). To the contrary failed attempts to work tend to

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support a claimant’s claims that he or she is disabled. See Fair v. Bowen, 885 F.2d 597, 604 (9th

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Cir. 1989). Here, Mr. Clement earned $1,703.58 in the three years between 2012 and 2014,

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which is indicative of failed attempts to work rather than work activity consistent with the ability

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to perform substantial gainful work activity.

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B.

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Evidence Presented to the Appeals Council
Mr. Clement sought review of the ALJ’s decision in the Appeals Council and submitted

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treatment records from the Los Angeles County Department of Mental Health (LA records), and

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a medical source statement from Cindy Tafoya, Psy.D. The Commissioner agrees the Court may

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review the LA records but argues they do not undermine the ALJ’s decision. As discussed above,

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the LA records undermine the ALJ’s finding that Mr. Clement’s testimony is inconsistent with

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how stable and well he is on medications.

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ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
PROCEEDINGS 5

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The LA records show, even with medications, Mr. Clement is not free and clear of

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significant functional limitations. Specifically, though Mr. Clement was taking “Lithium” he

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“continues to have insomnia, mood swings and could benefit from added stabilization with

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atypical antipsychotic.” Tr. 262. Based on this evidence, the Court finds the ALJ’s rejection of

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Mr. Clement’s testimony on the basis that he does well on medications and is stable is not

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supported by substantial evidence. Because the Court reverses the Commissioner’s final decision

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for the reasons above, the Court need not address the parties’ arguments regarding Dr. Tafoya’s

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source statement.

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CONCLUSION
The Court REVERSES the Commissioner’s final decision and REMANDS the case for

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further administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the

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ALJ shall reassess Mr. Clement’s testimony, develop the record, and reevaluate Mr. Clement’s

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RFC as needed, and proceed to step five as appropriate

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DATED this 18th day of September, 2017.

A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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