(SS) Huff v. Commissioner of Social Security ( 2022 )

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 JARROD WAYNE HUFF, No. 1:20-cv-00821-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF 7 JUDGMENT IN FAVOR OF PLAINTIFF KILOLO KIJAKAZI, acting AND AGAINST DEFENDANT 8 Commissioner of Social Security, COMMISSIONER OF SOCIAL SECURITY 9 (Doc. 23, 29) Defendant. 10 11 I. Introduction 12 Plaintiff Jarrod Wayne Huff (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 14 supplemental security income pursuant to Title XVI of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the Honorable Gary 16 S. Austin, United States Magistrate Judge.1 See Docs. 23, 29, 30. After reviewing the record the 17 Court finds that substantial evidence and applicable law do not support the ALJ’s decision. 18 Plaintiff’s appeal is therefore granted. 19 II. Factual and Procedural Background2 20 On October 14, 2016 Plaintiff applied for benefits alleging disability as of October 14, 2012. 21 AR 183–92. The Commissioner denied the applications initially on November 15, 2016 and upon 22 reconsideration on June 14, 2017. AR 106–110; 117–122. Plaintiff requested a hearing which was 23 held before an Administrative Law Judge (the “ALJ”) on March 26, 2019. AR 32–64. On April 24 23, 2019 the ALJ issued a decision denying Plaintiff’s application. AR 12–31. The Appeals 25 26 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 9 and 10. 27 2 The Court has reviewed the administrative record including the medical, opinion and testimonial 28 evidence, about which the parties are well informed. Relevant portions thereof will be referenced in the course of the analysis below when relevant to the arguments raised by the parties. Council denied review on April 7, 2020. AR 1–6. On June 11, 2020 Plaintiff filed a complaint in 2 this Court. Doc. 1. 3 III. The Disability Standard 4 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 5 Commissioner denying a claimant disability benefits. “This court may set aside the 6 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 7 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 8 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 9 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 10 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 11 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 12 When performing this analysis, the court must “consider the entire record as a whole and 13 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 14 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 15 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 16 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 17 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 18 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 19 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 20 To qualify for benefits under the Social Security Act, a plaintiff must establish that 21 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 22 last for a continuous period of not less than twelve months. 42 U.S.C. § 23 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 24 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 25 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 26 he would be hired if he applied for work. 27 42 U.S.C. §1382c(a)(3)(B). 28 To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 2 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 3 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 4 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 5 gainful activity during the period of alleged disability, (2) whether the claimant had medically 6 determinable “severe impairments,” (3) whether these impairments meet or are medically 7 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 8 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 9 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 10 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 11 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 12 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 13 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 14 IV. The ALJ’s Decision 15 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 16 his application date of October 14, 2016. AR 17. At step two the ALJ found that Plaintiff had the 17 following severe impairments: degenerative disc disease of the lumbar spine status post 18 laminectomy, obesity, hypertension, sleep apnea, depression and diabetes mellitus. AR 17. The 19 ALJ also determined at step two that Plaintiff had the following non-severe impairments: herpes, 20 generalized anxiety disorder, incontinence/neurogenic bladder, and varicose veins. AR 17–18. At 21 step three the ALJ found that Plaintiff did not have an impairment or combination thereof that met 22 or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart 23 P, Appendix 1. AR 18. 24 Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 25 concluded that Plaintiff had the RFC to perform light work as defined in 20 CFR 416.967(b) with 26 limitations on postural activities, no exposure to unprotected heights or dangerous machinery, and 27 a limitation to non-complex, simple and routine tasks. AR 19–24. At step four the ALJ concluded 28 that Plaintiff had no past relevant work. AR 24. At step five, in reliance on the VE’s testimony, the ALJ concluded that Plaintiff could perform other jobs existing in significant numbers in the 2 national economy at the light exertional level, namely garment bagger, electronics worker, and 3 marker. AR 25–26. Accordingly, the ALJ concluded that Plaintiff was not disabled at any time 4 since his application date of October 14, 2016. AR 26. 5 V. Issues Presented 6 Plaintiff asserts two claims of error: 1) that the ALJ erred at step two in finding his 7 neurogenic bladder was a non-severe impairment; and 2) that the ALJ erred in rejecting his 8 testimony without clear and convincing reasons. 9 A. Step Two Non-Severity Finding 10 1. Applicable Law 11 At step two of the five-step process, plaintiff has the burden to provide evidence of a 12 13 medically determinable physical or mental impairment that is severe and that has lasted or can be 14 expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 15 1002, 1004–05 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). A medically determinable 16 physical or mental impairment “must result from anatomical, physiological, or psychological 17 abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic 18 techniques,” and will not be found based solely on the claimant’s statement of symptoms, a 19 20 diagnosis or a medical opinion. 20 C.F.R. § 404.1521. 21 Step two is “a de minimis screening device [used] to dispose of groundless claims.” Smolen 22 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A “severe” impairment or combination of 23 impairments is one that significantly limits physical or mental ability to do basic work activities. 24 20 C.F.R. § 404.1520. An impairment or combination of impairments should be found to be “non- 25 severe” only when the evidence establishes merely a slight abnormality that has no more than a 26 minimal effect on an individual’s physical or mental ability to do basic work activities. Webb v. 27 28 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 20 C.F.R. §§ 404.1522, 416.922. “Basic work activities” mean the abilities and aptitudes necessary to do most jobs, including physical functions 2 such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, and 3 mental functions such as the ability to understand, carry out, and remember simple instructions, 4 5 deal with changes in a routine work setting, use judgment, and respond appropriately to supervisors, 6 coworkers, and usual work situations. 20 C.F.R. § 404.1522, 416.922. 7 When reviewing an ALJ’s findings at step two the Court “must determine whether the ALJ 8 had substantial evidence to find that the medical evidence clearly established that [the claimant] 9 did not have a medically severe impairment or combination of impairments.” Webb, 433 F.3d at 10 687 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference usually 11 accorded to the Secretary’s application of regulations, numerous appellate courts have imposed a 12 13 narrow construction upon the severity regulation applied here.”)). 14 2. Analysis 15 Here, the ALJ found Plaintiff’s neurogenic bladder non-severe because there was “no 16 evidence of functional limitations resulting from these conditions, and the claimant has not required 17 any significant treatment for these conditions.” AR 18. That finding is unsupported for the reasons 18 explained below. Later on, in the RFC section, the ALJ also referenced that Plaintiff “had urinary 19 incontinence for a while, but there is no objective evidence that it is neurogenic or related to spine 20 21 issues.” AR 23. It is not entirely clear whether the ALJ was summarizing a statement made by the 22 state agency physician, Dr. Coleman, or making his own finding. In either case, that finding is also 23 unsupported. 24 Plaintiff’s physicians indicated in treatment records that he has bladder incontinence due to 25 his spinal conditions. AR 311, 316, 330. In one instance the physician specifically stated, “urinary 26 incontinence from stenosis.” AR 330. Treatment notes dated May 11, 2015, indicate under “HPI” 27 28 (history of present illness) that “Patient has a h/o kyphosis and scoliosis since age 17. Has had multiple surgeries since . . . He is baseline bladder incontinence.” AR 311. The mention of the 2 bladder incontinence in the same line as the spinal surgeries also suggests a causal relationship may 3 exist between the two. The same records subsequently list Plaintiff’s various conditions and, under 4 5 each, the plan of care. Under “#Neurogenic bladder. History of herniated disc s/p repair” it states 6 “con’t Detrol” (a urinary antispasmodic). AR 316. His history of herniated disc status post repair 7 was listed in the same line as his neurogenic bladder, as if the two conditions go hand in hand. In 8 sum, to the extent the ALJ found the bladder condition non-severe because there was no evidence 9 it was related to his spinal conditions, the finding is unsupported. The evidence establishes a 10 possible relationship to his spinal conditions. 11 The ALJ also concluded that there was no evidence of functional limitations attributable to 12 13 Plaintiff’s incontinence and that he had not required significant treatment for the same. Neither 14 conclusion is supported. Urology treatment notes dated September 11, 2017, reflect that Plaintiff 15 had urinary retention of 140ml post voiding, his dosage of Detrol was increased, and he was 16 instructed to begin double voiding. AR 725. Relatedly, Plaintiff testified he has to use the 17 bathroom multiple times per hour and occasionally has urinary accidents. AR 43–44. He reported 18 the same to his physician. AR 520. The evidence of urinary frequency is significant and the ALJ’s 19 disregard of same cannot be dismissed as harmless error given the VE’s testimony that an additional 20 21 two unscheduled breaks of 15-minute duration would eliminate the available job base. AR 59. 22 Although the above-cited medical records do not specifically establish the need to use the 23 restroom multiple times per hour, or that any such visit would be of 15-minute duration, the cited 24 records do establish some functional limitations attributable to his urinary incontinence, namely a 25 greater than normal need to use the restroom. Specifically, the records suggest that Plaintiff would 26 require double the amount of bathroom breaks as someone with normal bladder function, or that 27 28 the bathroom breaks would each take twice as long insofar as he was instructed by his urologist to practice “double voiding.” 2 Plaintiff also testified that he “sometimes” has urinary accidents which require him to get a 3 change of clothes from his car. AR 44. He reported this to his physicians as well. AR 520. 4 5 Although his testimony on that issue was uncontradicted, there would have to be more specific 6 information in the record as to the frequency of these accidents to support a work-related limitation. 7 The testimony was insufficiently concrete. It is not clear how the VE’s expertise would be brought 8 to bear on the question of what jobs would be available in the national economy for an individual 9 with Plaintiff’s RFC who might have an accident at work. 10 At a minimum, however, the physician-recommended double voiding practice and 11 Plaintiff’s associated testimony as to his abnormal urinary frequency is more than “a slight 12 13 abnormality” with a “minimal effect on an individual’s physical or mental ability to do basic work 14 activities.” See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (describing the nature of a 15 non-severe impairment). Accordingly, the ALJ erred in finding the condition non-severe. Id. The 16 ALJ should have acknowledged the relevant records and Plaintiff’s related testimony, explained 17 what specific work-related limitations he believed that evidence did or did not support, and included 18 those limitations in his hypothetical to the VE at step five. See Flores v. Shalala, 49 F.3d 562, 570– 19 571 (9th Cir. 1995) (an ALJ “may not reject significant probative evidence without explanation.”) 20 21 (quotations omitted). 22 Defendant’s response brief spans about five pages, including two pages of substantive 23 argumentation, and one paragraph directed at this issue. Defendant underscores that Plaintiff did 24 not show up for his three month follow up as recommended by his urologist, nor had he called to 25 reschedule as of January 2019. Resp. at 4-5. Defendant contends this undermines Plaintiff’s 26 contention that the impairment was severe. Id. 27 28 The argument is unpersuasive. Defendant mistakenly relies on Chaudry in which the Ninth Circuit stated that “if a claimant complains about disabling pain but fails to seek treatment ,or fails 2 to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the 3 complaint unjustified or exaggerated . . . ” Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) 4 5 (emphasis added). Chaundry is not applicable to this set of facts. First, the quote addresses the 6 credibility of a claimant’s complaints of “disabling pain.” There is no contention here that 7 Plaintiff’s neurogenic bladder caused pain. Rather, it caused urinary frequency and incomplete 8 urination. 9 Second, the ALJ did not use Plaintiff’s failure to schedule a follow up appointment with 10 urology as “a basis for finding the complaint unjustified or exaggerated.” Id. The ALJ did not 11 acknowledge the content of the pertinent urology records, nor did he note Plaintiff’s lack of follow 12 13 up. The Court is constrained to the ALJ’s stated reasoning. Connett v. Barnhart, 340 F.3d 871, 14 874 (9th Cir. 2003). 15 Third, Plaintiff did not fail to seek treatment, nor is there any evidence that he failed to take 16 his Detrol and practice double voiding as directed by his urologist. He simply did not schedule his 17 follow up appointment. Failing to schedule a follow up appointment is not logically akin to failing 18 to follow a prescribed course of treatment, particularly where the physician has already 19 recommended a fairly definitive course of treatment, namely taking the increased dose of Detrol 20 21 and practicing double voiding. 22 Even if taking Detrol and practicing double voiding reasonably controlled Plaintiff’s 23 incontinence so as to preclude the need for additional follow ups, there is no reason to conclude 24 based on Plaintiff’s lack of follow up that his neurogenic bladder had somehow resolved and he 25 began voiding completely without difficulty. There is no indication that the condition was curable, 26 or that the urologist would have had any alternatives to recommend besides taking Detrol and 27 28 practice double voiding. Irrespective of Plaintiff’s lack of follow up, the urology records establish his need to urinate more than normal. There is no reason to believe that additional follow up 2 appointments would have resolved that issue. The unanswered question is what impact the 3 additional restroom time would have on a hypothetical individual’s ability to perform the jobs the 4 5 VE identified at step five. 6 B. Plaintiff’s Subjective Symptomology 7 1. Applicable Law 8 The ALJ is responsible for determining credibility,3 resolving conflicts in medical 9 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 10 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental 11 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 12 13 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 14 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 15 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 16 medical evidence of an impairment that could reasonably be expected to produce some degree of 17 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 18 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 19 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 20 21 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 22 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 23 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p 24 at *10. Subjective pain testimony “cannot be rejected on the sole ground that it is not fully 25 26 3 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 27 subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor 28 to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 16-3p at 1- 2. corroborated by objective medical evidence,” but the medical evidence “is still a relevant factor in 2 determining the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 3 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). 4 5 The ALJ must examine the record as a whole, including objective medical evidence; the 6 claimant’s representations of the intensity, persistence and limiting effects of his symptoms; 7 statements and other information from medical providers and other third parties; and any other 8 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 9 Before proceeding to step four, the ALJ must first determine the claimant’s residual 10 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 11 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 12 13 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 14 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 15 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 16 A determination of residual functional capacity is not a medical opinion, but a legal decision 17 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 18 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 19 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 20 21 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 22 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. 23 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 24 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 25 such as medical records, lay evidence and the effects of symptoms, including pain, that are 26 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 27 28 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 2 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 3 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 4 5 F.2d 1403, 1408 (9th Cir. 1986)). 6 2. Analysis 7 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 8 be expected to cause the alleged symptoms and found no malingering. AR 20. Thus, the ALJ was 9 required to articulate clear and convincing reasons for rejecting Plaintiff’s reported symptoms. 10 Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017). 11 After summarizing Plaintiff’s testimony and the medical evidence, the ALJ concluded that 12 13 his “ability to do light housework, all personal needs, some shopping, easy-meal preparation, and 14 drive, are inconsistent with the alleged presence of a condition that would preclude all work 15 activity.” AR 24. Plaintiff contends the reasoning was insufficiently clear and convincing as the 16 ALJ did not bridge the gap in his reasoning and tie these activities to the testimony they purportedly 17 undermined. 18 Defendant underscores the normal findings on physical examination. As noted above, 19 however, the Court is limited to the reasoning the ALJ asserts and the ALJ did not rely on physical 20 21 examination findings as a basis to reject Plaintiff’s testimony. Rather, the ALJ relied on Plaintiff’s 22 daily activities as quoted above. In fact, the ALJ rejected the opinions of consultative examiner 23 Dr. Siekerkotte and non-examining physician Dr. Coleman who opined that Plaintiff could perform 24 medium work. AR 23. Those opinions identified the same physical examination findings 25 Defendant underscores, namely normal strength, sensory function, reflexes, gait, transfers, balance, 26 muscle bulk, and muscle tone. AR 22-23. He also could stand on his heels and toes and one leg. 27 28 AR 22. Notwithstanding those examination findings, the ALJ nevertheless rejected the opinions of Drs. Siekerkotte and Coleman as the former did not have access to the longitudinal record and 2 the latter did not consider “the combination of the claimant’s subjective complaints combined with 3 the objective MRI findings.” AR 24. 4 5 Indeed, Plaintiff’s medical history included kyphoscoliosis fusion surgery, L5-S1 disc 6 herniation and degeneration status post laminectomy, S1 nerve root impingement, severe central 7 canal stenosis at L4-L5, and mild to moderate lateral recess stenosis at the same level. AR 20. 8 The imaging findings and surgical history are more than adequate to corroborate allegations of 9 daily sciatic pain level 7 or 8 out of 10, notwithstanding normal findings as to strength, reflexes, 10 and sensory function. AR 323. Considering the surgical history and the “combination of claimant’s 11 subjective complaints with the objective MRI findings,” the ALJ found that medium work was 12 13 precluded and an RFC for light work was more appropriate. Thus, the ALJ’s opinion reflects an 14 intention to credit Plaintiff’s subjective complaints in part. The ALJ ultimately assessed an RFC 15 more restrictive than what Drs. Siekerkotte and Coleman opined, but not so restrictive as to 16 preclude all work activity. But it remains unclear here how the ALJ struck that balance, or why. 17 Plaintiff did offer reasonably specific testimony that, if credited as true, would have 18 warranted more restrictive limitations than the ALJ included, and that testimony was not 19 undermined by his reported activities of daily living. Plaintiff could walk around old town Clovis 20 21 and play pokemon go, but only walked a half block before needing to sit and rest. AR 43. Plaintiff 22 could do dishes and vacuum, but only for 10 minutes before needing a 10-to-20-minute break to 23 rest in his recliner with his feet up. AR 46. He had significant sciatic pain at a level 7 or 8 everyday 24 despite using pain medication. AR 43. He could drive but required periodic breaks and a full day 25 of rest following long distance driving. AR 45. He anticipated being in his recliner all day 26 following the day of the hearing. Id. He prepared meals but they were limited to finger foods and 27 28 microwaveables. AR 222. There are no internal inconsistencies apparent in the testimony, and the testimony was 2 sufficiently specific that, if credited as true, it would conflict with ALJ’s assessed RFC for light 3 work. Light work requires standing and walking 6 hours in an 8-hour day, whereas Plaintiff 4 5 testified he could do chores no longer than 10 minutes, and walk no further than half a block. S.S.R. 6 83-10; AR 43-46. 7 In sum, notwithstanding the relatively normal clinical examinations findings as underscored 8 by Defendant and the agency’s consultative physicians, Plaintiff’s spinal surgical history and MRI 9 findings are reasonably consistent with his alleged pain levels and corresponding alleged 10 limitations. Indeed, the ALJ himself found that the longitudinal record, MRI findings, and 11 subjective testimony warranted rejection of the physicians’ opinions identifying an RFC for 12 13 medium work. The ALJ concluded that light work was more appropriate. Here, it is not clear why 14 the ALJ concluded that medium work was precluded but light work was permissible, nor is it clear 15 what testimony the ALJ believe to be unsupported and why. The ALJ’s reasoning was neither clear 16 nor convincing. 17 VI. Remand for Further Proceedings 18 The ALJ erred in dismissing Plaintiff’s neurogenic bladder as non-severe at step two despite 19 objective medical evidence and testimonial evidence of functional limitations attributable to the 20 21 condition, namely increased need for bathroom breaks. The ALJ further erred in dismissing 22 Plaintiff’s testimony as to his sciatic pain and corresponding standing and walking limitations as 23 inconsistent with his activities of daily living. Remand is therefore appropriate for the ALJ to 24 specifically consider those limitations, determine to what extent they are supported by the whole 25 record, and include specific corresponding limitations in the hypotheticals to the VE as appropriate. 26 See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Generally when a court . . . reverses 27 28 an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). 2 VII. Conclusion and Order 3 For the reasons stated above, the Court finds that substantial evidence and applicable law 4 5 do not support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal 6 from the administrative decision of the Commissioner of Social Security is granted. The Clerk of 7 Court is directed to enter judgment in favor of Plaintiff Jarrod Wayne Huff, and against Defendant 8 Kilolo Kijakazi, acting Commissioner of Social Security. 9 10 IT IS SO ORDERED. 11 12 Dated: February 9, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28