(SS) Cairns v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLYN COLLEEN CAIRNS, No. 2:18-cv-2905 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge’s treatment of the medical opinion 21 evidence, evaluation of the Listing Impairments, residual functional capacity determination, lay 22 witness testimony, and step five finding were erroneous. 23 //// 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. 25 See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 For the reasons explained below, plaintiff’s motion is granted, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 further proceedings consistent with this order. 4 PROCEDURAL BACKGROUND 5 In April of 2013, plaintiff filed applications for Disability Insurance Benefits (“DIB”) 6 under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income 7 (“SSI”) under Title XVI of the Act alleging disability beginning on December 31, 2012. 8 (Transcript (“Tr.”) at 356-72.) Plaintiff’s alleged impairments included carpal tunnel in both 9 hands, fibromyalgia, panic attacks, extreme fatigue, tennis elbow, and asthma. (Id. at 422.) 10 Plaintiff’s applications were denied initially, (id. at 228-33), and upon reconsideration. (Id. at 11 237-42.) 12 Plaintiff requested an administrative hearing and a hearing was held before an 13 Administrative Law Judge (“ALJ”) on January 27, 2015. (Id. at 88-134.) In a decision issued on 14 April 29, 2015, the ALJ found that plaintiff was not disabled. (Id. at 217.) However, on 15 September 13, 2016, the Appeals Council vacated the ALJ’s April 29, 2015 decision and 16 remanded the matter back to the ALJ for further proceedings. (Id. at 222-26.) 17 On remand, another hearing was held before an ALJ on April 11, 2017. (Id. at 38-87.) 18 Plaintiff was represented by an attorney and testified at the administrative hearing. (Id. at 38-40.) 19 In a decision issued on October 23, 2017, the ALJ again found that plaintiff was not disabled. 20 (Id. at 31.) The ALJ entered the following findings: 21 1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2013. 22 2. The claimant has not engaged in substantial gainful activity 23 since December 31, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 24 3. The claimant has the following severe impairments: asthma; 25 bilateral carpal tunnel syndrome; right lateral epicondylitis; lumbar degenerative disc disease; annular bulging of the cervical spine; 26 fibromyalgia; asthma; anxiety; and depression (20 CFR 404.1520(c) and 416.920(c)). 27 4. The claimant does not have an impairment or combination of 28 impairments that meets or medically equals the severity of one of 1 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 2 and 416.926). 3 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work 4 as defined in 20 CFR 404.1567(b) and 416.967(b) except she can frequently climb ramps or stairs; frequently balance, stoop, kneel, 5 crouch, or crawl; no climbing of ladders, ropes, or scaffolds; can frequently handle and finger; needs to avoid concentrated exposure 6 to fumes, odors, dusts, and gases; is limited to simple, repetitive, tasks; and is limited to occasional interaction with the public and 7 frequent interaction with co-workers or supervisors. 8 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965). 9 7. The claimant was born [in] 1967 and was 45 years old, which is 10 defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to 11 closely approaching advanced age (20 CFR 404.1563 and 416.963). 12 8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964). 13 9. Transferability of job skills is not material to the determination of 14 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” 15 whether or not the claimant has transferable job skills (See SSR 82- 41 and 20 CFR Part 404, Subpart P, Appendix 2). 16 10. Considering the claimant’s age, education, work experience, and 17 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 18 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 19 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 31, 2012, through the date of 20 this decision (20 CFR 404.1520(g) and 416.920(g)). 21 (Id. at 18-30.) 22 On August 29, 2018, the Appeals Council denied plaintiff’s request for review of the 23 ALJ’s October 23, 2017 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 24 U.S.C. § 405(g) by filing the complaint in this action on November 2, 2018. (ECF. No. 1.) 25 LEGAL STANDARD 26 “The district court reviews the Commissioner’s final decision for substantial evidence, 27 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 28 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 1 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 2 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 3 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 4 “[A] reviewing court must consider the entire record as a whole and may not affirm 5 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 6 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 7 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 8 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 9 1072, 1075 (9th Cir. 2002). 10 A five-step evaluation process is used to determine whether a claimant is disabled. 20 11 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 12 process has been summarized as follows: 13 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 14 Step two: Does the claimant have a “severe” impairment? If so, 15 proceed to step three. If not, then a finding of not disabled is appropriate. 16 Step three: Does the claimant’s impairment or combination of 17 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 18 disabled. If not, proceed to step four. 19 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 20 Step five: Does the claimant have the residual functional capacity to 21 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 22 23 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 24 The claimant bears the burden of proof in the first four steps of the sequential evaluation 25 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 26 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 27 1098 (9th Cir. 1999). 28 //// 1 APPLICATION 2 Plaintiff’s pending motion asserts the following five principal claims: (1) the ALJ’s 3 treatment of the medical opinion evidence constituted error; (2) the ALJ improperly rejected 4 plaintiff’s testimony; (3) the ALJ’s residual functional capacity determination was unsupported; 5 (4) the ALJ erred at step five of the sequential evaluation; and (5) the ALJ’s evaluation of the 6 Listing Impairments was erroneous.3 (Pl.’s MSJ (ECF No. 13-1) at 22-35.4) 7 I. Medical Opinion Evidence 8 The weight to be given to medical opinions in Social Security disability cases depends in 9 part on whether the opinions are proffered by treating, examining, or nonexamining health 10 professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a 11 general rule, more weight should be given to the opinion of a treating source than to the opinion 12 of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a 13 treating doctor is employed to cure and has a greater opportunity to know and observe the patient 14 as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 15 F.2d 1059, 1063 (9th Cir. 1990). 16 The uncontradicted opinion of a treating or examining physician may be rejected only for 17 clear and convincing reasons, while the opinion of a treating or examining physician that is 18 controverted by another doctor may be rejected only for specific and legitimate reasons supported 19 by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining 20 physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion 21 of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a 22 treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not 23 accept the opinion of any physician, including a treating physician, if that opinion is brief, 24 conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 25 26 3 The court has reordered plaintiff’s claims for purposes of clarity and efficiency. 27 4 Page number citations such as this one are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by the parties. 28 1 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2 2009)). 3 Here, plaintiff challenges the ALJ’s treatment of the opinion offered by licensed clinical 4 psychologist Dr. Chester Sunde.5 (Pl.’s MSJ (ECF No. 13-1) at 22.) Dr. Sunde issued a 5 comprehensive psychiatric evaluation pursuant to an examination conducted on September 4, 6 2013. (Tr. at 574-77.) The ALJ’s decision recounted Dr. Sunde’s findings, stating: 7 From a mental standpoint the claimant complained of anxiety panic attacks and isolative behavior. The mental status examination 8 revealed the following positive findings: her concentration was significantly impaired; pace was somewhat slow; she was reluctantly 9 cooperative; thoughts were distracted; she was preoccupied with her anxiety and with anger and frustration over difficulty accessing 10 treatment; mood was anxious and irritable; she struggled to spell the word “WORLD” backwards and made one error. The findings from 11 the mental status examination were otherwise unremarkable. Notably, she made fair eye contact, appeared to be a reliable 12 informant, and was oriented to person, place, time, and situation. Dr. Sunde diagnosed panic disorder, generalized anxiety disorder, and 13 alcohol dependence and assessed a global assessment of functioning (GAF) score of 47.6 Based on the examination, from a psychological 14 standpoint, he opined the following: no impairment in her ability to understand, remember, and complete simple commands; mild to 15 moderate impairment in her ability to understand, remember and complete complex commands; moderate to marked impairment in 16 her ability to interact appropriately with supervisors, coworkers and the public; moderate to marked impairment in her ability to comply 17 with job rules, safety and attendance; moderate to marked limitation 18 //// 19 //// 20 5 The opinions of a medical specialist regarding the specialist’s area of expertise “are given more 21 weight than the opinions of a nonspecialist.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); see also Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“Each rheumatologist’s 22 opinion is given greater weight than those of the other physicians because it is an opinion of a specialist about medical issues related to his or her area of specialty.”). 23 6 A Global Assessment of Functioning (“GAF”) score represents a present rating of overall 24 psychological functioning on a scale of 0 to 100. See Diagnostic and Statistical Manual of 25 Disorders, at 34 (Am. Psychiatric Ass’n, 4th Ed. 2000) (“DSM-IV”); see also Keyser v. Commissioner Social Sec. Admin., 648 F.3d 721, 723 (9th Cir. 2011) (“A GAF score is a rough 26 estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.”). A GAF score in the range of 41 to 50 denotes: “Serious 27 symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” 28 1 in her ability to respond to change in a normal workplace setting; and moderate to marked ability to maintain persistence and pace in a 2 normal workplace setting. 3 (Id. at 27.) 4 The ALJ purported to afford “[p]atrial weight” to Dr. Sunde’s opinion, finding that “the 5 moderate limitations are supported by the paragraph B analysis and the documented mental 6 symptoms described above[.]” (Id. at 28.) The ALJ, however, found that “any marked 7 limitations” were not supported. (Id.) 8 A claimant’s residual function capacity (“RFC”) is “the most [the claimant] can still do 9 despite [his or her] limitations.” 20 C.F.R. § 404.1545(a); 20 C.F.R. § 416.945(1); see also 10 Cooper v. Sullivan, 880 F.2d 1152, n.5 (9th Cir. 1989) (“A claimant’s residual functional capacity 11 is what he can still do despite his physical, mental, nonexertional, and other limitations.”). In 12 conducting an RFC assessment, the ALJ must consider the combined effects of an applicant’s 13 medically determinable impairments on the applicant’s ability to perform sustainable work. 42 14 U.S.C. § 423(d)(2)(B); Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996). The ALJ must 15 consider all of the relevant medical opinions as well as the combined effects of all of the 16 plaintiff’s impairments, even those that are not “severe.” 20 C.F.R. §§ 404.1545(a); 416.945(a); 17 Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). “[A]n RFC that fails to take into account a 18 claimant’s limitations is defective.” Valentine v. Commissioner Social Sec. Admin., 574 F.3d 19 685, 690 (9th Cir. 2009). The ALJ must determine a claimant’s limitations on the basis of “all 20 relevant evidence in the record.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 21 2006). 22 Here, the ALJ found that Dr. Sunde’s opinion finding plaintiff moderately limited in 23 several respects was supported by the record. (Tr. at 28.) The ALJ’s RFC determination, 24 however, does not account for all of Dr. Sunde’s opined moderate limitations. For example, Dr. 25 Sunde opined that plaintiff’s ability to comply with job rules, safety and attendance was at least 26 moderately impaired. (Id. at 577.) The ALJ’s RFC determination, however, accounts for no 27 impairment in the ability to comply with job rules, safety, or attendance. (Id. at 21.) Likewise, 28 Dr. Sunde found that plaintiff was at least moderately impaired in the ability to interact with 1 supervisors. (Id. at 577.) The ALJ’s RFC determination, however, found that plaintiff could 2 tolerate “frequent interaction” with supervisors. (Id. at 21.) 3 Moreover, with respect to Dr. Sunde’s opined marked limitations, the ALJ’s supported the 4 decision to rejecting these opined limitations by finding that plaintiff had received “routine 5 mental health treatment[.]” (Id. at 28.) No citation or further explanation was provided. 6 Elsewhere in the opinion the ALJ stated that plaintiff’s treatment “has primarily consisted of 7 routine non-emergency outpatient visits and psychiatric medications[.]” (Id. at 26.) It is unclear 8 to the court why treatment consisting of outpatient visits and psychiatric medications would 9 preclude the presence of any marked limitation, and the ALJ did not attempt to provide any such 10 explanation. 11 The ALJ also criticized Dr. Sunde’s opinion by noting that it “appears to have been 12 primarily made on a one time examination[.]” (Id. at 28.) But the opinions of examining 13 physicians are frequently, if not usually, based on a one-time examination. The final reason 14 offered by the ALJ for rejecting Dr. Sunde’s opined marked limitation was the ALJ’s vague and 15 conclusory assertion that those limitations were “not consistent with all of the mental health 16 evidence as a whole.” (Id.) 17 To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions 18 mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective 19 factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain 20 why they, rather than the doctors’, are correct. 21 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); see also Tackett v. Apfel, 180 F.3d 22 1094, 1102 (9th Cir. 1999) (“The ALJ must set out in the record his reasoning and the evidentiary 23 support for his interpretation of the medical evidence.”); McAllister v. Sullivan, 888 F.2d 599, 24 602 (9th Cir. 1989) (“Broad and vague” reasons for rejecting the treating physician’s opinion do 25 not suffice). 26 Accordingly, the court finds that the ALJ failed to offer a specific and legitimate, let alone 27 clear and convincing, reason for rejecting Dr. Sunde’s opinion. Plaintiff, therefore, is entitled to 28 //// 1 summary judgment on the claim that the ALJ’s treatment of the medical opinion evidence 2 constituted error. 3 II. Plaintiff’s Subjective Testimony 4 Plaintiff argues that the ALJ’s evaluation of plaintiff’s subjective complaints was 5 erroneous. (Pl.’s MSJ (ECF No. 13-1) at 32-35.) The Ninth Circuit has summarized the ALJ’s 6 task with respect to assessing a claimant’s credibility as follows: 7 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 8 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 9 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 10 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 11 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 12 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 13 Second, if the claimant meets this first test, and there is no evidence 14 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 15 convincing reasons for doing so[.] 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 17 omitted). “The clear and convincing standard is the most demanding required in Social Security 18 cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At 19 the same time, the ALJ is not required to believe every allegation of disabling pain, or else 20 disability benefits would be available for the asking[.]” Molina v. Astrue, 674 F.3d 1104, 1112 21 (9th Cir. 2012). 22 “The ALJ must specifically identify what testimony is credible and what testimony 23 undermines the claimant’s complaints.”7 Valentine v. Commissioner Social Sec. Admin., 574 24 25 7 In March 2016, Social Security Ruling (“SSR”) 16-3p went into effect. “This ruling makes clear what our precedent already required: that assessments of an individual’s testimony by an 26 ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to 27 produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (quoting SSR 28 1 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 2 599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other 3 things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] 4 testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work 5 record, and testimony from physicians and third parties concerning the nature, severity, and effect 6 of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 7 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 8 (9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the 9 record, the court “may not engage in second-guessing.” Id. 10 Here, the ALJ summarized plaintiff’s testimony as follows: 11 The claimant stated in a disability report that carpal tunnel in both hands, fibromyalgia, panic attacks, extreme fatigue, exhaustion, 12 weakness, tennis elbow of the right arm, and asthma limit her ability to work. At the initial administrative hearing the claimant indicated 13 that her conditions include bilateral carpal tunnel syndrome, asthma, cardiomyopathy, right lateral epicondylitis, lumbar low back 14 problems, fibromyalgia, and anxiety. She alleged that her back problems, wrist problems, and fibromyalgia have gotten worse since 15 2012. The claimant further alleged pain/electric shock on her skin and that she is exhausted all of the time. She also reported carpal 16 tunnel syndrome surgeries have made things worse, as she has she (sic) numbness loss of feeling, and pain. The claimant testified to 17 having exhaustion, back pain, neck pain, headaches, and lower back pain that radiates to her buttocks and right leg. She can purportedly 18 sit for five to ten minutes before needing to get up and stretch or lay down. The claimant alleged she can walk for 10 minutes before 19 needing to rest. She also stated she could stand in line for five minutes and can lift or carry five pounds. With regard to her mental 20 symptoms, the claimant alleged panic/anxiety attacks. Side effects of her medications purportedly include loss of appetite, weakness, 21 vomiting, fatigue, loss of water, she cannot. 22 (Tr. at 22.) 23 The ALJ found that plaintiff’s medically determinable impairments could reasonably be 24 expected to cause the symptoms alleged, but that plaintiff’s statements concerning the intensity, 25 persistence, and limiting effects of those symptoms were “not entirely consistent with the medical 26 evidence and other evidence in the record for the reason explained in [the] decision.”8 (Id. at 22.) 27 8 “ALJs routinely include this statement in their written findings as an introduction to the ALJ’s 28 1 In support of this finding, the ALJ asserted that plaintiff’s testimony was “not entirely 2 consistent with and supported by evidence of record,” as plaintiff’s treatment “primarily consisted 3 of medications and outpatient visits,” and that the “medical evidence of record does not reveal a 4 significant increase in her symptoms[.]” (Id. at 23.) The ALJ, however, did not explain why 5 treatment via outpatient visits and medication was inconsistent with any specific aspect of 6 plaintiff’s testimony. Likewise, the ALJ relied on the fact that at an October 2013 examination, 7 plaintiff was found to ambulate normally, sit comfortably, get on and off the exam table without a 8 problem, etc. (Id.) But the ALJ did not explain why a single example from October of 2013, of 9 plaintiff being able to move normally should discredit the entirety of plaintiff’s subjective 10 testimony. Moreover, there was in fact some evidence of record that revealed a “worsening” of 11 plaintiff’s symptoms. See, e.g., Id. at 617. 12 Additionally, “after a claimant produces objective medical evidence of an underlying 13 impairment, an ALJ may not reject a claimant’s subjective complaints based solely on a lack of 14 medical evidence to fully corroborate the alleged severity” of the symptoms. Burch v. Barnhart, 15 400 F.3d 676, 680 (9th Cir. 2005); see also Putz v. Astrue, 371 Fed. Appx. 801, 802-03 (9th Cir. 16 2010) (“Putz need not present objective medical evidence to demonstrate the severity of her 17 fatigue.”); Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (“If an adjudicator could reject 18 a claim for disability simply because a claimant fails to produce medical evidence supporting the 19 severity of the pain, there would be no reason for an adjudicator to consider anything other than 20 medical findings.”). 21 Another reason offered by the ALJ for rejecting plaintiff’s testimony was that plaintiff’s 22 testimony was “not entirely consistent with her activities of daily living.” (Tr. at 23.) In support 23 of this conclusion, the ALJ noted that although plaintiff “did not engage in substantial gainful 24 credible and why.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 25 2014). “The use of this generic language is not itself reversible error . . . but it inverts the responsibility of an ALJ, which is first to determine the medical impairments of a claimant based 26 on the record and the claimant’s credible symptom testimony and only then to determine the claimant’s RFC. By rejecting a claimant’s subjective symptoms ‘to the extent they are 27 inconsistent with the above residual functional capacity assessment,’ the agency indicates that it is failing properly to incorporate a claimant’s testimony regarding subjective symptoms and pain 28 1 activity” plaintiff “worked during the relevant period.” (Id.) That work, however, occurred in 2 2013, and only amounted to earnings of $3,213.10, an average of “$284.43 per month.” (Id. at 3 18.) Plaintiff testified this work was “very minimal” in terms of hours worked “and tasks,” due to 4 plaintiff’s “disabilities.” (Id. at 51.) “The question is not simply . . . the fact of employment or 5 the extent of her earnings. Rather, the answer turns on whether she was disabled within the 6 meaning of the Act notwithstanding the fact that she actually did work.” Stark v. Weinberger, 7 497 F.2d 1092, 1100 (7th Cir. 1974). 8 The ALJ also supported this conclusion by reliance on plaintiff’s ability to “dress and 9 bathe herself,” “take care of pets,” “do the laundry, dusting, and other light surface cleaning,” and 10 read, and watch television. (Tr. at 23.) However, 11 [t]he critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in 12 scheduling the former than the latter, can get help from other persons ... and is not held to a minimum standard of performance, as she 13 would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of opinions by administrative 14 law judges in social security disability cases. 15 Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). In this regard, the Ninth Circuit “has 16 repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as 17 grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from 18 her credibility as to her overall disability. One does not need to be utterly incapacitated in order 19 to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also Garrison v. 20 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citation omitted) (“[I]mpairments that would 21 unquestionably preclude work and all the pressures of a workplace environment will often be 22 consistent with doing more than merely resting in bed all day.”). 23 With respect to plaintiff’s “alleged panic/anxiety attacks,” the ALJ offered only two 24 reasons for rejecting this testimony. First, the ALJ again relied on plaintiff’s ability to read and 25 watch television, which is erroneous for the reasons discussed above. The ALJ also relied on the 26 ALJ’s observation of plaintiff “throughout the hearing[.]” (Tr. at 23.) However, “[t]he ALJ’s 27 observations of a claimant’s functioning may not form the sole basis for discrediting a person’s 28 testimony.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Perminter v. Heckler, 765 1 F.2d 870, 872 (9th Cir. 1985) (“The ALJ’s reliance on his personal observations . . . at the hearing 2 has been condemned as ‘sit and squirm’ jurisprudence.”); Gallant v. Heckler, 753 F.2d 1450, 3 1455 (9th Cir. 1984) (“The fact that a claimant does not exhibit physical manifestations of 4 prolonged pain at the hearing provides little, if any, support for the ALJ’s ultimate conclusion that 5 the claimant is not disabled or that his allegations of constant pain are not credible.”). 6 For the reasons stated above, the court finds that the ALJ failed to offer a clear and 7 convincing reason for rejecting plaintiff’s testimony. Accordingly, plaintiff is also entitled to 8 summary judgment on this claim. 9 III. RFC 10 Plaintiff next argues that the ALJ’s finding that plaintiff could perform the exertional 11 demands of light work was not supported by substantial evidence. (Pl.’s MSJ (ECF No. 13-1) at 12 30.) As noted above, in determining a plaintiff’s RFC, the ALJ must consider the combined 13 effects of plaintiff’s medically determinable impairments on the ability to perform sustainable 14 work. Macri, 93 F.3d at 545. “[A]n RFC that fails to take into account a claimant’s limitations is 15 defective.” Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 16 Here, because the ALJ erroneously rejected Dr. Sunde’s opinion and plaintiff’s subjective 17 testimony the RFC failed to take into account all of plaintiff’s limitations and was defective. 18 Accordingly, plaintiff is also entitled to summary judgment on this claim. 19 IV. Step Five Error 20 Plaintiff argues that the ALJ failed to satisfy the burden of establishing that there is work 21 plaintiff can perform because the ALJ’s hypothetical question to the Vocational Expert was 22 incomplete. (Pl.’s MSJ (ECF No. 13-1) at 35-36.) 23 At step five of the sequential evaluation, “the Commissioner has the burden ‘to identify 24 specific jobs existing in substantial numbers in the national economy that a claimant can perform 25 despite his identified limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting 26 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)) (alterations omitted). The ALJ can meet 27 her burden by either taking the testimony of a Vocational Expert (“VE”) or by referring to the 28 //// 1 grids. See Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006). Here, the ALJ relied 2 on the testimony of a VE. (Tr. at 30, 73-86.) 3 However, while an ALJ may pose a range of hypothetical questions to a VE based on 4 alternate interpretations of the evidence, the hypothetical question that ultimately serves as the 5 basis for the ALJ’s determination, i.e., the hypothetical question that is predicated on the ALJ’s 6 final residual functional capacity assessment, must account for all of the limitations and 7 restrictions of the particular claimant. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 8 (9th Cir. 2009). “If an ALJ’s hypothetical does not reflect all of the claimant’s limitations, then 9 the expert’s testimony has no evidentiary value to support a finding that the claimant can perform 10 jobs in the national economy.” Id. (citation and quotation marks omitted); see also Taylor v. 11 Commissioner of Social Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (“Because neither the 12 hypothetical nor the answer properly set forth all of Taylor’s impairments, the vocational expert’s 13 testimony cannot constitute substantial evidence to support the ALJ’s findings.”). 14 Here, because the ALJ erroneously rejected the opinion of Dr. Sunde and plaintiff’s 15 subjective testimony, the ALJ’s hypothetical question to the VE did not account for the 16 limitations established by that evidence. (Tr. at 81-84.) Accordingly, plaintiff is also entitled to 17 summary judgment on this claim. 18 CONCLUSION 19 After having found error, “‘[t]he decision whether to remand a case for additional 20 evidence, or simply to award benefits[,] is within the discretion of the court.’”9 Trevizo, 871 F.3d 21 at 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). A case may be 22 remanded under the “credit-as-true” rule for an award of benefits where: 23 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 24 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 25 26 9 In light of the ALJ’s multiple errors and the court’s finding that this matter must be remanded for further proceedings, the court finds it unnecessary to reach plaintiff’s remaining claim of 27 error. See Morales v. Berryhill, 239 F.Supp.3d 1211, 1220 (E.D. Cal. 2017) (“In light of the remand for payment of benefits required by the resolution of the two claims addressed above, the 28 1 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 2 3 Garrison, 759 F.3d at 1020. 4 Even where all the conditions for the “credit-as-true” rule are met, the court retains 5 “flexibility to remand for further proceedings when the record as a whole creates serious doubt as 6 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 7 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 8 concludes that further administrative proceedings would serve no useful purpose, it may not 9 remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 10 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is 11 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 12 Given the ALJ’s multiple and repeated errors and the length of time plaintiff’s claim has 13 been pending, the court is reluctant to send this matter back to the ALJ for yet another bite at the 14 apple. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the 15 Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play 16 again’ system of disability benefits adjudication.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th 17 Cir. 2004) (“The Commissioner, having lost this appeal, should not have another opportunity to 18 show that Moisa is not credible any more than Moisa, had he lost, should have an opportunity for 19 remand and further proceedings to establish his credibility.”). 20 Nonetheless, given the ALJ’s multiple errors, the scope of the period at issue and evidence 21 of record, the court cannot say that further administrative proceedings would serve no useful 22 purpose. This matter, therefore, will be remanded for further proceedings. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion for summary judgment (ECF No. 13) is granted; 25 2. Defendant’s cross-motion for summary judgment (ECF No. 16) is denied; 26 3. The Commissioner’s decision is reversed; 27 //// 28 //// wOAoe 2.40 VV YP UETOTIL ba POC OTe PF Aye AV VI LY 1 4. This matter is remanded for further proceedings consistent with this order; and 2 5. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 3 4 Dated: September 7, 2020 6 Ki BARNES 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DLB:6 23 || DB\orders\orders.soc sec\cairns2905.ord 24 25 26 27 28 16