Leon v. Kijakazi ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MICHAEL L.,1 Case No. 22-cv-05373-RMI 9 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT 11 MARTIN O’MALLEY, Re: Dkt. Nos. 19, 23 12 Defendant. 13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying his 15 application for disability insurance benefits under Title II of the Social Security Act. See Admin. 16 Rec. at 1.2 The Appeals Council of the Social Security Administration (“SSA”) declined to review 17 the ALJ’s decision. Id. As such, the ALJ’s decision is a “final decision” of the Commissioner of 18 Social Security, appropriately reviewable by this court. See 42 U.S.C. §405(g), 1383(c)(3). Both 19 parties have consented to the jurisdiction of a magistrate judge (dkts. 5, 8) and both parties have 20 moved for summary judgment (dkts. 19, 23). For the reasons stated below, Plaintiff’s Motion for 21 Summary Judgment is granted, and Defendant’s Cross Motion for Summary Judgement is denied. 22 LEGAL STANDARDS 23 The Social Security Act limits judicial review of the Commissioner’s decisions to final 24 decisions made after a hearing. 42 U.S.C. § 405(g). The Commissioner’s findings “as to any fact, 25 26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the 27 Judicial Conference of the United States, Plaintiff’s name is partially redacted. 1 if supported by substantial evidence, shall be conclusive.” Id. A district court has limited scope of 2 review and can only set aside a denial of benefits if it is not supported by substantial evidence or if 3 it is based on legal error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 4 1995). The phrase “substantial evidence” appears throughout administrative law and directs courts 5 in their review of factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 6 1154 (2019). Substantial evidence is defined as “such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. 8 NLRB, 305 U.S. 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 9 1997). “In determining whether the Commissioner’s findings are supported by substantial 10 evidence,” a district court must review the administrative record as a whole, considering “both the 11 evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” 12 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld 13 where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 14 F.3d 676, 679 (9th Cir. 2005). 15 SUMMARY OF THE RELEVANT EVIDENCE 16 A. Relevant Medical History 17 Plaintiff suffers from heart problems which began to manifest in May of 2015, when 18 Plaintiff was diagnosed with hypertrophic cardio myopathy (“HCM”), a genetic condition 19 “characterized by unexplained left ventricular hypertrophy,” or a thickening of the heart’s walls. 20 See AR 1720-21, 1589. The symptoms of HCM can include “hyperdynamic left ventricular 21 function, diastolic dysfunction, atrial fibrillation, and ventricular arrhythmias” all of which can 22 cause “sudden death.” AR at 1589. While HCM is generally “well managed with medical 23 therapy,” and often does not require surgery or more intensive intervention (id.), Plaintiff’s HCM 24 diagnosis is a persistent concern throughout his medical record, and there is evidence to suggest 25 that it is complicated by his other diagnoses. See e.g., id. at 528, 529, 565, 583-84, 656, 657, 799, 26 844, 919, 924, 928, 996, 1532, 1533, 1539, 1589, 1653, 1720-21. More recently, Plaintiff has been 27 discussing heart surgery with his doctors as a long-term solution to his HCM. Id. at 928, 966, 976, 1 Plaintiff’s HCM diagnosis is accompanied by persistent cardiac arrhythmia. See e.g., id. at 2 412-15, 423-27, 565, 602, 688, 708, 1639, 1652. In September of 2017, Plaintiff had an ablation to 3 treat atrial fibrillation. Id. at 495. In October of 2017, Plaintiff presented at the emergency room 4 for heart palpitations and shortness of breath. Id. at 423. He was determined to be in atrial 5 fibrillation and his doctors administered an electrical cardioversion to shock his heart back into a 6 normal sinus rhythm. Id. at 426. In December of that year, Plaintiff again presented to the 7 emergency room with heart palpitations, this time accompanied by shoulder and neck pain. Id. at 8 412. Plaintiff received a second electrical cardioversion. Id. at 415. 9 From January 2018 through February of 2020, Plaintiff was relatively stable. See e.g., id. 10 at 744, 779, 810, 844, 852, 867. He took daily medication to manage both his HCM and atrial 11 fibrillation (see id. at 676); underwent periods of monitoring, which largely showed an absence of 12 significant atrial fibrillation, but did demonstrate atrial tachycardia (id. at 727); stopped working to 13 reduce his mental and physical stress (see id. at 868, 921, 976-77, 996); and limited his exercise 14 and activity (see e.g., id. at 781, 938). While evidence in the record indicates that Plaintiff 15 continued to be concerned about episodes of atrial fibrillation throughout this period and limited 16 his exposure to stress accordingly, there is also evidence that Plaintiff denied having heart 17 palpitations and was able to complete at least some exercise (see e.g., id. at 852, 920). In February 18 of 2020, Plaintiff again reported to the emergency room with heart palpitations. Id. at 1639. Prior 19 to his hospitalization, Plaintiff had missed two doses of his heart medication. Id. 20 In addition to his heart conditions, Plaintiff also has difficulty with his hips. See generally 21 id. at 506-13, 553, 564. In 2017, Plaintiff began to experience significant pain and discomfort due 22 to severe arthritis in his left hip. Id. at 557. Plaintiff’s mobility was limited, he walked with an 23 assistive device, had difficulty putting on his socks and shoes, and was largely unable to exercise. 24 Id. Initially, Plaintiff could not get cardiac clearance for hip replacement surgery. Id. However, in 25 December 2018, Plaintiff’s heart was stable enough to undergo surgery and Plaintiff’s left hip was 26 replaced. Id. at 506. His hip replacement was successful and, after a period of rehabilitation, 27 Plaintiff’s quality of life was greatly improved. Id. at 551-557. There is evidence of moderate 1 surgery, although they anticipate that surgery is inevitable. Id. at 938, 966-67, 976, 1516. 2 In addition to his heart and hip impairments, Plaintiff also suffers from asthma, 3 hypertension, and obesity. See e.g., id. at 413, 494, 505, 528, 529, 656, 670. Evidence of these 4 impairments is present throughout Plaintiff’s medical record. Id. 5 B. Plaintiff’s Testimony 6 Plaintiff’s testimony at his May 2021 hearing is summarized in relevant part as follows: 7 From 2006 to October 20, 2018, Plaintiff worked for various companies as a manager, in charge of 8 ATM maintenance and software contracts. Id. at 120-24. Plaintiff worked mostly from his office, 9 though he did a fair bit of commuting around the Bay Area to meet with clients. Id. at 124. Id. at 10 123. In October 2018, Plaintiff left his job at the direction of his doctors because of his heart 11 condition. Id. at 124. Plaintiff testified that his work was very stressful because there was a lot of 12 money on the line and if Plaintiff did not perform, then the company, and therefore Plaintiff, 13 would be penalized. Id. at 136-38. Plaintiff alleged that he was unable to work primarily because 14 the mental stress from his work exacerbated his heart condition. See id. at 138-39. 15 Plaintiff testified that he was diagnosed with hypertrophic cardiomyopathy, a condition 16 where the walls of the heart thicken, and decrease blood flow to and from the heart. Id. at 125. A 17 “byproduct of that condition” is atrial fibrillation and atrial flutter. Id. When Plaintiff experiences 18 atrial flutter atrial fibrillation, he becomes very out of breath, begins to sweat profusely, and 19 sometimes becomes sick and vomits. Id. at 125-26. In these instances, Plaintiff goes to the hospital 20 where he undergoes cardio inversions to get his heart back into a sinus rhythm. Id. at 126. Plaintiff 21 testified that incidents of atrial flutter occur “a minimum of once a month,” that “it will last for 22 periods” and he will call the doctor, who will tell him to monitor his condition. Id. 23 When asked about a typical day, Plaintiff testified that he wakes up, feeds his dog, and 24 then takes his dog on a walk. Id. at 129. Plaintiff generally walks “about a mile and a half” at a 25 slow pace. Id. Depending on his exertion levels, Plaintiff will take breaks. Id. Plaintiff described 26 that if he got “overtaxed” he would “just stop, sit down, and … move on as [his] heart rate came 27 down.” Id. at 129. Plaintiff monitors his heart rate using his Apple watch and does his best to 1 returns from his walk he rests, “cools down”, and then, depending on how he is feeling, will do 2 some of his physical therapy, which consists of a 17-minute video available online. Id. at 130. It 3 takes Plaintiff 45 minutes to complete his 17-minute physical therapy video because he takes 4 breaks between the exercises and sets. Id. If he is not feeling up to his physical therapy, then he 5 will do some stretches for about 20 minutes to help with his hip, and occasionally, he incorporates 6 small hand weights. Id. Plaintiff keeps his exertion level low, and he does what he can to reduce 7 his mental and physical stress. See id. at 129-33. 8 After his walk and exercise, Plaintiff usually takes a shower. Id. at 132. If he has errands, 9 he will do his errands. Id. Otherwise, Plaintiff testified that “I just kind of sit back and relax for the 10 rest of the day. Do some reading. You know watch a little TV. That’s about it.” Id. Plaintiff feels 11 this is the extent of his abilities because of his heart and hip conditions. See id. 12 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 13 A person filing a claim for social security disability benefits (“the claimant”) must show 14 that he has the “inability to do any substantial gainful activity by reason of any medically 15 determinable impairment” which has lasted or is expected to last for twelve or more months. See 16 20 C.F.R. §§ 416.905(a), 416.909. The ALJ must consider all evidence in the claimant’s case 17 record to determine disability (see id. at § 416.920(a)(3)) and must use a five-step sequential 18 evaluation process to determine whether the claimant is disabled. Id. at § 416.920; see also id. at § 19 404.1520. While the claimant bears the burden of proof at steps one through four (see Ford v. 20 Saul, 950 F.3d 1141, 1148 (9th Cir. 2020)), “the ALJ has a special duty to fully and fairly develop 21 the record and to assure that the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 22 441, 443 (9th Cir. 1983). Here, the ALJ appropriately set forth the applicable law regarding the 23 required five-step sequential evaluation process. AR at 24-25. 24 At step one, the ALJ must determine if the claimant is presently engaged in “substantial 25 gainful activity” (20 C.F.R. § 404.1520(a)(4)(i)), which is defined as work done for pay or profit 26 and involving significant mental or physical activities. See Ford, 950 F.3d at 1148. Here, the ALJ 27 determined that Plaintiff had not performed substantial gainful activity during the relevant period. 1 At step two, the ALJ decides whether the claimant’s impairment (or combination of 2 impairments) is “severe” (see 20 C.F.R. § 404.1520(a)(4)(ii)), “meaning that it significantly limits 3 the claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 4 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant will not be 5 found to be disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the 6 severe impairments of cardiac arrhythmia, obesity, and degenerative joint disease in both hips. AR 7 at 25. The ALJ did not address Plaintiff’s HCM, asthma, or hypertension. Id. 8 At step three, the ALJ is tasked with evaluating whether the claimant has an impairment or 9 combination of impairments that meet or equal an impairment in the “Listing of Impairments.” See 10 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings describe 11 impairments that are considered sufficiently severe as to prevent any individual so afflicted from 12 performing any gainful activity. Id. at § 404.1525(a). Each impairment is described in terms of 13 “the objective medical and other findings needed to satisfy the criteria in that listing.” Id. at § 14 404.1525(c)(3). For a claimant to show that his or her impairment matches a listing, it must meet 15 all the specified medical criteria—an impairment that manifests only some of those criteria, no 16 matter how severely, does not “meet” that listing. See Sullivan v. Zebley, 493 U.S. 521, 530 17 (1990). If an impairment either meets the listed criteria, or if one or more impairments are 18 determined to be medically equivalent to the severity of that set of criteria, that person is 19 conclusively presumed to be disabled without a consideration of age, education, or work 20 experience. See 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an 21 impairment or combination of impairments that meets or equals the criteria or severity of any of 22 the listings. AR at 26. 23 If a claimant does not meet or equal a listing, the ALJ must formulate the claimant’s 24 residual functional capacity (“RFC”), which is defined as the most that a person can still do 25 despite the limitations associated with their impairment. See 20 C.F.R. § 404.1545(a)(1). Here, the 26 ALJ determined that Plaintiff could perform less than a full range of light work with the following 27 exceptions: Plaintiff could lift, carry, and push/pull 20 pounds occasionally and 10 pounds 1 hour work day; Plaintiff could climb ramps and stairs occasionally, balance, stoop, kneel, crouch, 2 and crawl occasionally, but could never climb ladders, ropes, or scaffolds; Plaintiff could never 3 work at unprotected heights or around moving mechanical parts; Plaintiff could occasionally 4 operate a motor vehicle. AR at 27. The ALJ did not include any limitations regarding the level of 5 mental stress Plaintiff could tolerate. Id. 6 Following the formulation of the RFC, the ALJ must determine—at step four—whether the 7 claimant can perform his past relevant work, which is defined as “work that [the claimant has] 8 done within the past 15 years, that was substantial gainful activity, and that lasted long enough for 9 [the claimant] to learn to do it.” See 20 C.F.R. § 404.1560(b)(1). If the ALJ determines, based on 10 the RFC, that the claimant can perform his past relevant work, the claimant will not be found 11 disabled. Id. at § 404.1520(f). Otherwise, at step five, the burden shifts to the agency to prove that 12 the claimant can perform a significant number of jobs that are available in the national economy. 13 See Ford, 950 F.3d at 1149. To meet this burden, the ALJ may rely on the Medical-Vocational 14 Guidelines (commonly referred to as “the grids”) (20 C.F.R. Pt. 404 Subpt. P, App. 2); or, 15 alternatively, the ALJ may rely on the testimony of a Vocational Expert (“VE”). Ford, 950 F.3d at 16 1149 (citation omitted). A VE may offer expert opinion testimony in response to hypothetical 17 questions about whether a person with the physical and mental limitations imposed by the 18 claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either as 19 the claimant actually performed it or as generally performed in the national economy, or the 20 demands of other jobs that may be available in the national economy. See 20 C.F.R. § 21 404.1560(b)(1). An ALJ may also use other resources for this purpose, such as the Dictionary of 22 Occupational Titles (“DOT”). Id. 23 At step four, the ALJ determined that Plaintiff could perform his past relevant work as a 24 professional sales and service manager and contract administrator. AR at 31. As such, the ALJ did 25 not proceed to step five. Id. Accordingly, the ALJ determined that Plaintiff was not disabled at any 26 time during the relevant period. Id. at 33. 27 / 1 DISCUSSION 2 A. The ALJ’s Step Two Error 3 At step two, the ALJ determined that Plaintiff’s severe impairments were limited to cardiac 4 arrhythmia, obesity, and degenerative joint disease of the left and right hip. AR at 25. The ALJ 5 found that Plaintiff’s non-alcoholic fatty liver disease, though medically determinable, was not 6 severe. Id. at 25-26. The ALJ did not address Plaintiff’s HCM, asthma, or hypertension. 7 Step two’s evaluation is a de minimus test intended to weed out patently groundless claims 8 and the most minor of impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987); Edlund v. 9 Massanari, 253 F.3d 1152, 1158 (9th Cir. 2005) (stating that the step two inquiry is a de minimus 10 screening device to dispose of groundless claims) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 11 (9th Cir. 1996)); Webb v. Barnheart, 433 F.3d 683, 687 (9th Cir. 2005) (step two is a “de minimis 12 threshold”). An impairment is non-severe at step two only if the evidence establishes a slight 13 abnormality that has only a minimal effect on an individual’s ability to work. Smolen, 80 F.3d at 14 1290. 15 Here, the ALJ failed to mention, let alone analyze, Plaintiff’s HCM, asthma, and 16 hypertension at step two. See AR at 25. This omission constitutes a legal error that is not harmless. 17 See Stout v. Comm’r Soc. Sec., 454 F.3d 1050, 1055 (9th Cir. 2006) (explaining that an error is 18 harmless only if it is not prejudicial to the claimant or is otherwise inconsequential to the ALJ's 19 ultimate non-disability determination). HCM is Plaintiff’s primary diagnosis. AR at 656. 20 Evidence in the record demonstrates that Plaintiff’s HCM is complicated by his persistent atrial 21 fibrillation and that “patients with HCM generally have poor tolerance of arrhythmias.” See id. at 22 1653. Further, Plaintiff and his physicians were considering heart surgery to treat his HCM (id. at 23 928, 966, 976, 966, 1539), and records indicate that Plaintiff managed his HCM by reducing his 24 exposure to mental stress—specifically, by no longer working (see e.g., id. at 529, 620). Thus, it is 25 evident that Plaintiff’s HCM was not so de minimus as to warrant complete dismissal—indeed, a 26 lack of consideration entirely—at step two. Plaintiff’s asthma and hypertension also deserve the 27 ALJ’s consideration, as they are diagnoses that appear repeatedly in Plaintiff’s medical record and 1 ALJ’s decision. As such, the ALJ erred at step two by failing to account for all of Plaintiff’s 2 medically determinable impairments—an error which, if remedied, may have altered the ALJ’s 3 determination of Plaintiff’s RFC and his ultimate finding of non-disability. 4 B. The ALJ’s Assessment of Plaintiff’s Testimony 5 When assessing a claimant’s testimony regarding the subjective intensity, persistence, and 6 limiting effects of their symptoms, an ALJ must first determine whether the claimant has 7 presented “objective medical evidence of an underlying impairment which could reasonably be 8 expected to produce the symptoms alleged.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 9 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). If such evidence is present, 10 “and there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the 11 severity of [his or her] symptoms only by offering specific, clear and convincing reasons for doing 12 so.” Garrison, 759 F.3d at 1015 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) and 13 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)) (internal quotations omitted). This 14 is not an easy standard to meet; “[t]he clear and convincing standard is the most demanding 15 required in Social Security Cases.” Id. (citing Moore v. Comm’r Soc. Sec. Admin., 278 F.3d 920, 16 924 (9th Cir. 2002)). 17 The ALJ’s reasons for dismissing claimant’s testimony must be specific. Brown-Hunter v. 18 Colvin, 806 F.3d 487, 493-95 (9th Cir. 2015). The ALJ must “identify the testimony [from a 19 claimant] she or he finds not to be credible and … explain what evidence undermines that 20 testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r 21 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). Further, a generic statement that the 22 claimant’s testimony is “not entirely consistent with the objective medical and other evidence,” 23 does not meet the specificity requirement. Id. (quoting Treichler, 775 F.3d at 1103 for the 24 proposition that a “‘boilerplate statement’ by way of an ‘introductory remark,’ which is ‘routinely 25 include[d]’ in ALJ decisions denying benefits,” is not sufficiently specific because it does not 26 “identify what parts of the claimant’s testimony were not credible and why.”); see also Brown- 27 Hunter, 806 F.3d at 494-95 (finding that where an ALJ decision “simply stated [the ALJ’s] non- 1 specific, clear and convincing standard was not met because “providing a summary of medical 2 evidence … is not the same as providing clear and convincing reasons for finding the claimant's 3 symptom testimony not credible.” (emphasis in original)). 4 In the decision before the court, the summarized Plaintiff’s testimony and then stated that 5 “[d]espite the claimant’s allegations, his impairments cause debilitating functional limitations 6 [sic], but to the contrary [sic], he is able to care for his personal needs, seek medical treatment, 7 read, watch television, go on daily walks for about 1.5 miles, and participate in online exercises at 8 home.” AR at 28. The ALJ then included a boilerplate statement, with which the court is very 9 familiar: 10 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to 11 cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely 12 consistent with the medical evidence and other evidence in the record for the 13 r easons explained in this decision. 14 The decision proceeds to summarize the medical evidence supporting the ALJ’s RFC finding. Id. 15 at 28-32. 16 The Commissioner asserts that the ALJ gave “specific, clear and convincing” reasons for 17 dismissing Plaintiff’s testimony by making two findings: (1) that Plaintiff’s allegations were “not 18 fully consistent with the medical evidence” and (2) that Plaintiff’s alleged symptoms were 19 “inconsistent with his daily activities.” Def.’s Mot. (Dkt. 23) at 12. 20 Although a claimant’s testimony may be disregarded if it is inconsistent with the medical 21 record, the ALJ must identify “specific discrepancies between [a claimant’s] testimony and the 22 objective medical evidence.” Smartt v. Kijakazi, 53 F.4th 489 (9th Cir. 2022) (finding ALJ’s 23 dismissal of Plaintiff’s testimony was proper where ALJ pointed to discrepancies between 24 claimant’s testimony that she could not walk without an assistive device and medical records 25 stating she could walk without an assistive device). However, a general finding that Plaintiff’s 26 testimony is not entirely consistent with the record will not suffice. Brown-Hunter, 806 F.3d at 27 494-95. Here, the ALJ did not articulate an inconsistency with the medical evidence to the level of 1 inconsistency with the evidence, followed by a summary of the evidence in support of an RFC 2 finding, do not constitute “specific, clear and convincing” reasons for dismissing a claimant’s pain 3 and symptom testimony. Lambert, 980 F.3d at 1277. Additionally, the court may not “comb the 4 administrative record to find specific conflicts,” supplanting the ALJ’s reasoning with its own. 5 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (explaining that the court may not “take a 6 general finding—an unspecified conflict between [c]laimant’s testimony ... and her reports to 7 doctors—and comb the administrative record to find specific conflicts”). And, the court declines 8 the Commissioner’s invitation to supply “specific, clear and convincing reasons” post hoc. Bray v. 9 Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (“Long-standing principles of administrative 10 law require us to review the ALJ's decision based on the reasoning and factual findings offered by 11 the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been 12 thinking.”). 13 A claimant’s testimony may also be disregarded because of their daily activities. See e.g., 14 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). There are two ways in which daily activities 15 may undermine a claimant’s testimony: first, daily activities may be incompatible with the 16 severity of a claimant’s alleged symptoms; and second, daily activities may indicate the claimant 17 is capable of skills transferrable to the workplace. Id. (citing Fair v. Bowen, 885 F.2d 597, 603 18 (9th Cir. 1989) (superseded on other grounds by 20 C.F.R. § 404.1502(a))). However, “the Social 19 Security Act does not require that claimants be utterly incapacitated to be eligible for benefits.” 20 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1989). Moreover, “many home activities are not 21 easily transferable to … the more grueling environment of the workplace[.]” Id.; see also 22 Garrison, 759 F.3d at 1016 (“The critical differences between activities of daily living and 23 activities in a full-time job are that a person has more flexibility in scheduling the former than the 24 latter, can get help from other persons …, and is not held to a minimum standard of performance, 25 as she would be by an employer. The failure to recognize these differences is a recurrent, and 26 deplorable, feature of opinions by administrative law judges in social security disability cases.”) 27 (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)). Thus, “[o]nly if the activity were 1 claimant's credibility.” Reddick, 157 F.3d at 722. 2 Here, Plaintiff’s claimed limitations are that he has to regulate his activity so as to ensure 3 his heart rate does not go above 105 bpm; that in order to do so, he has to take frequent breaks to 4 rest and cool down, that when he incorporates these breaks he is able to tolerate walking 1.5 miles, 5 complete his online physical therapy videos, do some errands, cook dinner, read, and watch TV. 6 AR at 129-30. Plaintiff testified that his atrial fibrillation is triggered by mental as well as physical 7 stress, and, significantly, that it was primarily the mental stress associated with his previous 8 employment that precluded his ability to work. Id. at 138-39. 9 The ALJ found these allegations to be inconsistent with Plaintiff’s daily activities of 10 walking 1.5 miles per day, reading, watching TV, and attending his doctor’s appointments. It is 11 unclear from the ALJ’s decision whether the ALJ found Plaintiff’s daily activities internally 12 inconsistent with his testimony, or whether he found that Plaintiff’s daily activities implied a level 13 of functioning readily transferrable to the workplace. Nor is it evident whether the ALJ dismissed 14 the entirety of Plaintiff’s testimony as inconsistent, or simply certain statements of limitation. This 15 obscurity is, itself, evidence that the ALJ’s reasoning lacked the specificity required by the Ninth 16 Circuit. See Orn, 495 F.3d at 639 (“The ALJ must make specific findings relating to [the daily] 17 activities and their transferability to conclude that a claimant’s daily activities warrant an adverse 18 credibility determination.”) (internal quotations and citations omitted). 19 In any event, neither inconsistency nor transferability applies here. Reading and watching 20 television are not activities that induce mental or physical stress, and thus, do not conflict with 21 Plaintiff’s allegations that he cannot engage in stressful work. Orn, 495 F.3d at 639 (“reading 22 [and] watching television … are activities that are so undemanding that they cannot be said to bear 23 a meaningful relationship to the activities of the workplace”). It is evident that Plaintiff was able to 24 complete his daily activities only with the type of modification that the home environment 25 provides—such as frequent breaks, slow pace, and a lack of minimum performance standards—all 26 of which are absent from the typical work environment. Plaintiff’s primary allegation is that his 27 heart was unable to handle the mental stress of his former employment. Plaintiff’s ability to take 1 otherwise spend his time resting does not conflict with his allegation that he could not perform in a 2 high-stress environment. Nor do these activities suggest that Plaintiff possessed a level of stress 3 tolerance transferrable to his former employment, for nothing about Plaintiff’s daily activities 4 indicates performance under pressure. Thus, the ALJ’s reliance on Plaintiff’s daily activities is not 5 a “specific, clear and convincing” reason to dismiss Plaintiff’s testimony.3 6 However, the court agrees with the Commissioner that there remains some doubt as to 7 Plaintiff’s disability. Plaintiff’s medical records indicate improvement and management of his 8 heart and hip conditions with treatment and medication. Def.’s Mot (Dkt. 23) at 12. They also 9 indicate that Plaintiff’s physical activity was, at least at times, less restricted than Plaintiff 10 described at his hearing. AR at 868, 920-21. Further, there remains some ambiguity regarding the 11 impact of Plaintiff’s cardiac arrhythmia on his underlying diagnosis of HCM, and the effect of 12 mental stress on Plaintiff’s heart conditions. Accordingly, further administrative proceedings are 13 necessary to develop and clarify the record as to 1) the effect of Plaintiff’s HCM on his symptoms 14 and functional limitations; 2) the extent of Plaintiff’s physical limitations; and 3) the extent of 15 Plaintiff’s tolerance of mental stress in the workplace. Thus, the court finds that there remain 16 “outstanding issues that must be resolved before a disability determination can be made,” and that 17 “further administrative proceedings would be useful.” See Leon v. Berryhill, 880 F.3d 1041, 1045 18 (9th Cir. 2017). Plaintiff’s request for an immediate award of benefits is therefore DENIED. The 19 court REMANDS this matter for further administrative proceedings consistent with this order. 20 21 3 The Commissioner is particularly concerned with Plaintiff’s daily activities as they are memorialized in 22 two of Plaintiff’s medical records. In 2019 Plaintiff reported to his doctors that he went to Tahoe and was able to walk around at high elevation without shortness of breath. AR at 868. In 2020, Plaintiff reported 23 that he was walking 9,000 steps a day, going to the gym 3 days a week, lifting 30-35 pounds, and walking on the treadmill for ten minutes at 3.5 miles per hour with an incline up to 9%. Id. at 920-21. The 24 Commissioner is right to see a potential inconsistency between this statement and Plaintiff’s testimony at his hearing. However, the ALJ did not discredit Plaintiff’s testimony by comparing his alleged daily 25 activities in 2021 with the daily activities he described to his doctors 2019 and 2020. Rather, the ALJ dismissed Plaintiff’s testimony as inconsistent with his daily activities as Plaintiff described them at the 26 2021 hearing. For the reasons stated above, this is not a sufficiently “specific, clear and convincing reason” to discredit Plaintiff’s testimony. The court may not make inferences—even if reasonable—from the ALJ’s 27 summary of the RFC to supplement inadequate reasoning. See Brown-Hunter, 806 F.3d at 494-95. The court may only assess the ALJ’s reasons as they are articulated in the decision on review; as such, the 1 Because the court remands for further proceedings based on the ALJ’s step two error and his 2 || inadequate reasoning for dismissing Plaintiff's testimony, the court need not address Plaintiff's 3 alternative grounds for remand. See Hiler vy. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) 4 (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [Plaintiffs] 5 alternative ground for remand.”); Steven M. v. Saul, No. 19-cv-06991-RMI, 2021 WL 1056787, at 6 *5 (N.D. Cal Mar. 19, 2021). On remand, the ALJ is ORDERED to consider the issues raised in 7 || Plaintiff's briefing and to modify any ensuing opinion to the extent necessary. 8 CONCLUSION 9 For the reasons stated above, Plaintiff's Motion for Summary Judgment is GRANTED and 10 || Defendant’s Cross Motion for Summary Judgment is DENIED. Accordingly, the court 11 REMANDS for further proceedings consistent with this order. A separate judgment shall issue. 12 IT IS SO ORDERED. 13 Dated: February 26, 2024 14 Ml Z 15 gz ROBERT M. ILLMAN = 16 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28