Henderson v. Saul ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANUEL A. H., Case No.: 3:20-cv-00911-BAS-LL 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING CROSS MOTIONS FOR SUMMARY 14 ANDREW SAUL, JUDGMENT Commissioner of Social Security, 15 Defendant. [ECF Nos. 18, 19] 16 17 18 Plaintiff Manuel A. H. brought this action for judicial review of the Social Security 19 Commissioner’s denial of his claim for disability insurance benefits. Before this Court are 20 Plaintiff’s Motion for Summary Judgment [ECF No. 18 (“Pl.’s Mot.”)], Defendant’s Cross- 21 Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary 22 Judgment [ECF No. 19 (“Def.’s Mot.”)], and Plaintiff’s Reply in Support of Motion for 23 Summary Judgment [ECF No. 20 (“Pl.’s Reply”)]. 24 This Report and Recommendation is submitted to United States District Judge 25 Cynthia A. Bashant pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the 26 United States District Court for the Southern District of California. For the reasons set forth 27 below, this Court RECOMMENDS that Plaintiff’s Motion for Summary Judgment be 28 1 GRANTED, and Defendant’s Cross-Motion for Summary Judgment be DENIED. This 2 Court further RECOMMENDS that the case be REMANDED for further proceedings. 3 I. PROCEDURAL BACKGROUND 4 On March 22, 20171, Plaintiff applied for Title II disability insurance benefits 5 (“DIB”) pursuant to Title II and Supplemental Security Income (“SSI”) pursuant to Title 6 XVI. See Administrative Record (“AR”) at ECF No. 16 at 225-31, 232-39. In Plaintiff’s 7 application for DIB, he alleged disability beginning on June 9, 2016. AR 225.2 In Plaintiff’s 8 application for SSI, he alleged disability beginning on November 18, 2014. AR 232. 9 Plaintiff’s claims for both DIB and SSI were initially denied on September 8, 2017. Id. at 10 148-52. Plaintiff requested reconsideration of the initial determination on November 3, 11 2017, which was also denied. Id. at 153-163. On April 12, 2018, Plaintiff requested a 12 hearing before an Administrative Law Judge. Id. at 164. 13 On May 30, 2019, a hearing was held before Administrative Law Judge (“ALJ”) 14 Deborah Van Vleck. Id. at 189-217. Plaintiff appeared with his attorney, Mr. Leonard 15 Schneider, and testified at the hearing. Id. at 43-89. An impartial vocational expert, Ms. 16 Jennifer Guediri, was also present and testified. Id. In a written decision dated June 18, 17 2019, the ALJ determined that Plaintiff had not been under a disability, as defined in the 18 Social Security Act, from November 8, 2014 through the date of the ALJ’s decision.3 Id. 19 20 21 1 The Administrative Law Judge’s June 18, 2019 decision states that Plaintiff’s application was filed on February 13, 2017. AR 27. Plaintiff and Defendant also use the application date of February 13, 2017 in 22 their respective Cross-Motions for Summary Judgment. Pl.’s Mot. at 1; Def.’s Mot. at 2. However, based on the Court’s review of the Administrative Record, Plaintiff’s application was filed on March 22, 2017. 23 AR 225-31, 232-39. 24 2 The ALJ’s opinion and Plaintiff’s Motion for Summary Judgment incorrectly state that Plaintiff’s DIB 25 application alleged a disability onset date of November 18, 2014. ECF No. 18 at 1. However, based on the Court’s review of the Administrative Record, November 18, 2014 was the alleged onset date for 26 Plaintiff’s SSI application; Plaintiff’s DIB application alleged a disability onset date of June 9, 2016. AR 232, 225. 27 3 The ALJ noted in her decision that Plaintiff’s employment records indicated that he engaged in 28 1 at 38. The ALJ’s decision became final on March 31, 2020, when the Appeals Council 2 denied Plaintiff’s request for review of the ALJ’s ruling. Id. at 1-6. 3 On May 15, 2020, Plaintiff filed the instant action for judicial review by the federal 4 district court. ECF 1. On January 19, 2021, Plaintiff filed a Motion for Summary 5 Judgment. ECF No. 18. On March 3, 2021, Defendant filed a Cross-Motion for Summary 6 Judgment. ECF No. 19. On March 16, 2021, Plaintiff filed a Reply. ECF No. 20. Defendant 7 did not file a Reply in Support of the Motion for Summary Judgment. See Docket. 8 II. DISABILITY HEARING 9 On May 30, 2019, Plaintiff appeared with counsel at the hearing before the ALJ. AR 10 45. During the hearing, the ALJ questioned Plaintiff regarding his work experience and 11 alleged disability. Id. at 43-89. Plaintiff testified that he was thirty-three years old and had 12 a high school diploma. Id. at 48, 52-53. He stated that his last gainful employment was as 13 a security guard at RBW SD Incorporated. Id. at 55. Plaintiff described that he often called 14 out of work for not feeling well and eventually quit in June 2016 because he was “just too 15 sick.” Id. at 58. Prior to working as a security guard, the Plaintiff stated he also worked as 16 a street cleaner and as a grounds caretaker. Id. at 58-64. 17 The ALJ next asked Plaintiff a series of questions about his diagnosis of Meniere’s 18 disease. Id. at 66. Plaintiff stated that his doctor, Dr. Erik Virre, told him that his Meniere’s 19 disease originated from an ear infection which spread to his inner ear and caused permanent 20 damage. Id. at 66, 87-88. Plaintiff stated that, as a result, he is always dizzy and imbalanced. 21 Id. at 64. Plaintiff alleged that he suffers from constant ear-ringing, tinnitus, and vertigo. 22 Id. at 66. Plaintiff testified: 23 [e]verything I do 24/7, it’s just vertigo; vertigo, vertigo, dizziness, ears ringing. When I’m done here, I’m going to have go lay down. I’ll lay down in 24 my bed, because I can’t sit up. I can’t stand up or sit for too long. 25 Id. 26 27 However, the ALJ still used the November 8, 2014 date as the disability onset date for purposes of her 28 1 Plaintiff stated that he takes Venlafaxine, a depression medication. Id. at 67. When 2 the ALJ asked whether the medication helped, Plaintiff responded that the pills help 3 “balance” him out but do not get rid of his constant dizziness, ear-ringing, or headaches. 4 Id. 5 The ALJ asked Plaintiff questions about his finances and home life. Id. at 48. 6 Plaintiff testified that he is supported by his mother, who receives disability benefits, and 7 that he lives in her house with two sisters and two nieces. Id. Plaintiff stated that he receives 8 “general relief” from the County of San Diego. Id. at 50. Plaintiff testified that he is able 9 to grocery shop, prepare his meals, change his linens when necessary, and do laundry. Id. 10 at 71-72. Plaintiff said he tries to clean the house but cannot clean thoroughly because he 11 becomes dizzy. Id. at 72. Plaintiff testified that he uses a cane to walk, and can only walk 12 “to the front yard.” Id. at 68. Plaintiff said he can stand for “[m]aybe less than ten minutes, 13 and then I have to sit down.” Id. at 70. Plaintiff testified that he does not have a social life 14 besides interactions with his family and his girlfriend. Id. at 54. When asked about what 15 type of activities he enjoys with his girlfriend, Plaintiff responded: 16 We watch TV and movies together. I have to wear glasses when we watch the movie together. And we’ll go out to eat. And that’s really it. We used to do a 17 lot more, you know, theme parks and go to the beach. We did a lot more of 18 that, but I really can’t do any of that no more… Id. at 72-73. 19 Plaintiff testified that “the bright light on his phone aggravates [him]” because it 20 “makes [his] vertigo worse.” AR 74. Plaintiff stated that he cannot use a “tablet” or play 21 video games anymore because they aggravate his vertigo. Id. Plaintiff stated that he “can 22 barely watch TV.” Id. at 75. Plaintiff also stated that he gets migraines roughly once a 23 week. Id. at 77. 24 The ALJ also questioned the Vocational Expert (“VE”), Ms. Guediri. Id. at 83-87. 25 Based upon the hypothetical identifying Plaintiff’s Residual Functional Capacity (“RFC”), 26 the VE opined that Plaintiff could not perform his past work. Id. at 84. However, the VE 27 stated that an individual of Plaintiff’s RFC could perform several gainful jobs, including 28 1 that of a sorter, assembler, and marker. Id. at 85. The VE’s testimony is summarized in 2 more detail in the Discussion section below. 3 III. SUMMARY OF THE ALJ’S DECISION 4 On June 18, 2019, the ALJ issued a written decision in which she determined that 5 Plaintiff had not been under a disability, as defined in the Social Security Act, from 6 November 8, 2014 through the date of the ALJ’s decision. AR 24-42. The ALJ proceeded 7 to follow the Commissioner’s five-step sequential evaluation process. See 20 C.F.R. §§ 8 404.1520, 416.920. 9 At step one, the ALJ found that Plaintiff engaged in substantial gainful employment 10 from June 2015 to June 2016 after the alleged onset date. AR 29-30. The ALJ confirmed 11 that after June 2016, Plaintiff did not engage in any substantial gainful employment. Id. 12 At step two, the ALJ found that Plaintiff had the following severe impairments: “a 13 neurological disturbance variously diagnosed to include endolymphatic hydrops vs. 14 migraine vertigo in the setting of mental impairment diagnosed to include somatoform 15 disorder, unspecified anxiety disorder, [and] major depressive disorder due to medical 16 condition.” Id. at 30. 17 At step three, the ALJ found that Plaintiff does not have an impairment, or a 18 combination of impairments, that met or medically equaled one of the impairments as 19 defined in 20 CFR Part 404. Id. at 31. The ALJ noted that Plaintiff’s statements about the 20 intensity, persistence, and limiting effects of his symptoms “were highly inconsistent both 21 internally and in the medical evidence of record.” Id. at 35. In her RFC assessment, the 22 ALJ found that Plaintiff had the RFC to perform light work as defined in the 23 Commissioner’s regulations, subject to certain non-exertional limitations. Id. at 33. 24 Specifically, the ALJ found: 25 [He can] occasionally climb ramps and stairs; he can never climb ladders, ropes or scaffolds; he can occasionally balance, stoop, kneel, crouch; he can 26 never crawl; he can never work in the presence of unprotected heights or 27 hazardous machinery; he should not be required to operate a motor vehicle as part of the job duties; he should not be in the presence of concentrated 28 1 exposure to vibration; he should never work in the presence of concentrated exposure to extreme heat or extreme cold. [He] needs to wear sunglasses while 2 working; he needs to use a cane in his upper right extremity when standing or 3 walking. [He] is limited to performing work with no more than occasional interaction with the public. 4 Id. 5 At step four, the ALJ found that Plaintiff, based on his limitation to less than the full 6 range of light work, was unable to perform his past relevant work as a security guard, street 7 cleaner, or a grounds caretaker. Id. at 36. At step five, the ALJ adduced and accepted the 8 VE’s testimony that a hypothetical person with Plaintiff’s vocational profile could make a 9 successful adjustment to other work as a “sorter,” a “small products assembler,” or a 10 “marker.” Id. at 37. Accordingly, the ALJ found that Plaintiff was not disabled. Id. at 38. 11 IV. STANDARD OF REVIEW 12 The Social Security Act permits unsuccessful applicants to seek judicial review of 13 the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of judicial review is 14 limited in that a denial of benefits will not be disturbed if it is supported by substantial 15 evidence and contains no legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 16 2002). 17 Substantial evidence is “more than a mere scintilla, but may be less than a 18 preponderance.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). It is 19 evidence that a “reasonable mind might accept as adequate to support a conclusion.” Id. In 20 determining whether the ALJ’s findings are supported by substantial evidence, the court 21 “must consider the entire record as a whole, and may not affirm simply by isolating a 22 specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 23 2007). When the evidence may be reasonably construed to support more than one rational 24 interpretation, the court must uphold the ALJ’s decision. Thomas, 278 F.3d at 954. Further, 25 the court reviews “only the reasons provided by the ALJ in the disability determination and 26 may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 27 F.3d 995, 1010 (9th Cir. 2014). Additionally, the court may not reverse the ALJ’s decision 28 1 on account of a harmless error. Molina v. Astrue, 674 F.3d 1104, 111 (9th Cir. 2012). The 2 burden of proving harmless error falls upon the party attacking the agency’s determination. 3 Id. 4 Section 405(g) permits a court to enter judgment affirming, modifying, or reversing 5 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand 6 the matter to the Social Security Administration for further proceedings. Id. 7 V. DISCUSSION 8 Plaintiff challenges the ALJ’s unfavorable decision on two grounds. First, Plaintiff 9 contends that the ALJ failed to resolve an apparent conflict between Plaintiff’s sunglasses 10 and cane limitations with the VE’s finding that Plaintiff can perform work as a sorter, small 11 products assembler, and marker. Pl.’s Mot. at 4-7. Second, Plaintiff contends the ALJ 12 further erred by failing to offer clear and convincing reasons for discounting Plaintiff’s 13 subjective symptom testimony. Id. at 8. The Court addresses each ground below. 14 A. Relevant Law On Whether the ALJ Failed to Resolve an Apparent Conflict 15 16 At Step Five, the ALJ determines whether the claimant is able to perform any work 17 other than the claimant’s past relevant work, considering the claimant’s RFC age, 18 education and work experience. 20 C.F.R. § 416.920(a)(4)(v). Should the ALJ decide 19 that the claimant is not disabled, “the [SSA] is responsible for providing evidence that 20 demonstrates that other work exists in significant numbers in the national economy that 21 [the claimant] can do, given [the claimant’s RFC] and vocational factors.” 20 C.F.R. § 22 416.920(c)(2). 23 Social Security Ruling (“SSR”) 00-4p governs the use of occupational evidence. At 24 Step Five of the sequential evaluation, ALJs rely on the DOT and testimony from 25 vocational experts in making a disability determination. SSR 00-4p, 2000 WL 1898704 at 26 *2 (Dec. 4, 2000). The DOT is a reference guide in the form of a job catalog that contains 27 standardized occupational information about each job. An ALJ is to “rely primarily on the 28 DOT…. for information about the requirements of work in the national economy.” Id. An 1 ALJ may also call upon a VE to provide occupational evidence through testimony at a 2 disability benefits hearing. Id. 3 The DOT provides specific information about each job, including General Education 4 Development (“GED”) and Specific Vocational Preparation (“SVP”) scores. The GED 5 score includes a reasoning development level score, which “embraces those aspects of 6 education (formal and informal) which are required of the worker for satisfactory job 7 performance,” DOT, Appendix C. The scale of reasoning development levels is 1 to 6, with 8 6 being the most advanced level. DOT, Appendix C. The SVP score refers to “‘the amount 9 of lapsed time required by a typical worker to learn the techniques, acquire the information, 10 and develop the facility needed for average performance in a specific job-worker 11 situation.’” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1230, n.4 (9th Cir. 2009) 12 (quoting DOT, Appendix C, p. 1009 (4th ed. 1991) ). “‘The DOT lists [an SVP] time for 13 each described occupation. Using the skill level definition in 20 C.F.R. 404.1568 and 14 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to 15 an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.’” Bray, 554 16 F.3d at 1230, n.4 (quoting Policy Interpretation Ruling: Titles II & Xvi: Use of Vocational 17 Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. In 18 Disability Decisions, SSR 00-4P (S.S.A. Dec. 4, 2000)). 19 “When there is [a conflict or an apparent conflict] between the [VE’s] testimony and 20 the DOT – for example, expert testimony that a claimant can perform an occupation 21 involving DOT requirements that appear more than the claimant can handle––the ALJ is 22 required to reconcile the inconsistency.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 23 2015) (citing Massachi v. Astrue, 486, F.3d 1149, 1153-54 (9th Cir. 2007)); SSR 00-4p, 24 2000 WL 1898704 at *4 (The ALJ has an “affirmative responsibility to ask about any 25 possible conflict between [the VE’s testimony about the requirement of a job] and 26 information provided in the DOT.”). The ALJ must first ask the “expert to explain the 27 conflict” and “‘then determine whether the vocational expert’s explanation for the conflict 28 is reasonable’ before relying on the expert’s testimony to reach a disability determination.” 1 Zavalin, 778 F.3d at 846 (quoting Massachi, 486 F.3d at 1153-54; SSR 00-4p, 2000 WL 2 1898704 at *2 (“When there is an apparent unresolved conflict between VE … evidence 3 and the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying 4 on the VE … evidence to support a determination or decision about whether the claimant 5 is disabled.”). 6 The ALJ’s duty to inquire is triggered if the conflict between the VE’s testimony 7 and the DOT’s job description is “obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 8 808 (9th Cir. 2016). “This means that the testimony must be at odds with the [DOT’s] 9 listing of job requirements that are essential, integral, or expected.” Id. “Where the ALJ 10 fails to obtain an explanation for and resolve an apparent conflict––even where the VE did 11 not identify the conflict––the ALJ errs.” Thompson v. Colvin, No. ED CV 13-1851-SP, 12 2015 WL 1476001, at *3 (C.D. Cal. Mar. 31, 2015) (citing cases); see also Massachi, 486 13 F.3d at 1153-54 (reversible error where the ALJ failed to ask the VE “whether her 14 testimony conflicted with the [DOT], and if so, whether there was a reasonable explanation 15 for the conflict.”); Zavalin, 778 F.3d at 847-848 (reversible error where the ALJ “failed to 16 recognize” a conflict between the claimant’s limitation to simple, routine tasks and the 17 demands of the Level 3 reasoning jobs); Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th 18 Cir. 2017) (reversible error where the ALJ failed to inquire about the apparent conflict 19 between the claimant’s left-hand limitations and the VE’s testimony.) 20 B. Summary of Parties’ Arguments About Whether the ALJ Failed to Resolve an Apparent Conflict 21 22 Plaintiff states that the ALJ assessed Plaintiff’s RFC to allow him to “perform a 23 narrow range of work with occasional postural activities, no work around unprotected 24 heights or hazardous machinery, no operation of a motor vehicle, no exposure to vibration 25 or temperature extremes, requiring the need to wear sunglasses while working, using a cane 26 in the right dominant hand for standing or walking, and no more than occasional interaction 27 with the public.” Pl.’s Mot. at 4 (citing AR 33). Plaintiff further states that the “sorter” 28 occupation identified by the VE frequently requires “near acuity,” which is defined as 1 “clarity of vision at 20 inches or less.” Pl.’s Mot. at 4- 5 (citing Selected Characteristics of 2 Occupations (“SCO”), Appendix C, p. C-4 ¶ 15). Plaintiff argues that the requirement to 3 wear sunglasses while working preclude him from performing the component of the sorter 4 position that requires frequent “near acuity.” Pl.’s Mot. at 5. In support thereof, Plaintiff 5 argues: 6 The purpose of sunglasses is to diminish the amount of light entering the lens 7 and hitting the retina. [Plaintiff] has less light striking the retina making visual contrast of detail less. The vocational expert did not explain how a person with 8 less light entering the eye could perform work that required frequent near 9 acuity. [Plaintiff] wears sunglasses to address his vertigo, not photosensitivity. . . . Lights make [Plaintiff] dizzy. . . . The ALJ must propound a complete 10 hypothetical question that is accurate, detailed and supported by the record. 11 The answer given by the vocational expert alerts the record that the need for sunglasses without a description of opacity or impact on near acuity draws out 12 the conflict. The ALJ did not making a finding about near acuity and the 13 impact of sunglasses on near acuity. 14 Id. (internal citations and quotations omitted). Plaintiff also argues that the sorter position 15 requires light exertion, the small products assembler position requires frequent light 16 exertion, and the marker requires light exertion. Pl.’s Mot. at 6 (citing AR 413-414, 334). 17 Plaintiff states that when the ALJ proposed the hypothetical of a person with a cane, in the 18 right dominant hand, when standing or walking, that the VE still found that the hypothetical 19 person can still perform the three positions because they allowed sitting or standing at a 20 workstation. Id. Plaintiff cites to the three proposed job descriptions from the DOT, and 21 argues that “the proposition that these three occupations would never require 22 standing/walking has an apparent conflict with the DOT.” Id. at 6. In sum, Plaintiff argues 23 that the VE’s “testimony conflicts with the DOT narrative descriptions of the job duties 24 and with the Commissioner’s description of why Labor defines work as light.” Id. at 7. 25 Defendant argues that the ALJ properly relied on the VE’s testimony at step five. 26 Def.’s Mot. at 4. In support thereof, Defendant argues that the VE’s testimony was 27 “sufficient under the substantial evidence standard.” Id. Defendant states that Ninth Circuit 28 standard holds that an ALJ “may take administrative notice of any reliable job information, 1 including . . . the services of a vocational expert.” Id. (citing Johnson v. Shalala, 60 F.3d 2 1428, 1435 (9th Cir. 1995)). Notwithstanding this, Defendant argues that Plaintiff’s 3 arguments on this issue were “administratively waived as Plaintiff, represented by counsel, 4 failed to raise them at the administrative hearing where any such alleged ‘conflicts’ could 5 have (and in fact were) addressed.” Def.’s Mot. at 6. 6 C. VE’s Testimony In This Case 7 The VE, Ms. Guediri, identified Plaintiff’s past work as a security guard, street 8 cleaner, and grounds caretaker. AR 60, 62-63, 65. The ALJ’s questions and Ms. Guediri’s 9 responses are set forth in relevant part below: 10 Q: I’d like you to consider a hypothetical individual of the Claimant’s same age, which is 33, education, high school diploma, and the three past jobs 11 identified. I’d further like you to assume this individual has the following 12 residual functional capacity: This individual has no exertional limitations. However, this individual has some non-exertional limitations. This individual 13 can occasionally climb ramps and stairs. Never climb ladders, ropes or 14 scaffolds. Occasional balance, stoop, kneel, crouch. Never crawl. Never work in the presence of unprotected heights or hazardous machinery. Should not be 15 required to operate a motor vehicle as part of the job duties. Shouldn’t be in 16 the presence of concentrated exposure to vibration. Should never work in the presence of concentrated exposure to extreme heat or extreme cold. This 17 individual would be better with no more than occasional interaction with the 18 public. Based upon that residual functional capacity, could this hypothetical individual perform past work? 19 A: No, Your Honor. 20 Q: Is there other work this individual could perform? A: Yes, one example would be a stock selector. DOT 922.687-058. And 21 that is medium, unskilled, SVP 2. Approximately 275,000 nationwide. 22 Another example would be a linen room attendant. DOT 222.387-030. Medium. Unskilled. SVP 2. Approximately 250,000 nationwide. 23 Additionally, Your Honor, on the light level, an example would be a sorter 24 position. DOT 569.687-022. That is light work, unskilled, SVP 2. Approximately 150,000 nationwide. 25 Q: All right. For hypothetical two, I would like to add this individual needs 26 to wear sunglasses when working. If we had the sunglasses, what effect would that have on these jobs? 27 A: I don’t think that would make any difference, Your Honor, as long as 28 the individual maintained productivity. 1 Q: Okay. And then hypothetical three would be hypothetical two with the sunglasses. In addition to that, this individual needs to use a cane when 2 standing and walking in the right dominant upper extremity. What effect 3 would it have on the jobs you’ve described, and would there be other work? A: Okay. So, with those restrictions, it would rule out the stock selector 4 and the linen room attendant. Now, the sorter position can be performed sitting 5 or standing at a workstation. So, that would remain. And other positions would include an assembler for small products. DOT 706.684-022. Light. Unskilled, 6 SVP 2. Approximately, 85,000 nationwide. And that is another job that can 7 be done sitting or standing at a workstation. Another example would be a marker. DOT 209.587-034. That is also light, unskilled. SVP 2. Can also be 8 performed sitting or standing at a workstation, and the numbers nationwide 9 would be approximately 310,000. 10 AR 83-85. The ALJ also proposed one final hypothetical to the VE about an individual 11 with all the limitations from the previous hypotheticals and if the individual were to be 12 absent from the job four days per month. Id. at 87. The VE testified that “would eliminate 13 full-time, competitive work.” Id. 14 Plaintiff’s attorney asked the VE: “And the answers you gave about the absence and 15 off task, those are not based on the DOT, right?” Id. at 88. The VE responded: “Right. As 16 well as the sit/stand, the cane, and the sunglasses, also not addressed by the DOT. My 17 answers there are based on my 20 years of experience in the field as a vocational 18 consultant.” Id. 19 D. Analysis 20 i. Sorter (DOT 569.687-022) 21 1. Requirement for Near Acuity 22 As an initial matter, the Court notes that Defendant does not dispute or otherwise 23 address the requirement for a sorter to utilize frequent “near acuity” as set forth in the DOT. 24 DICOT 569.687-022 (G.P.O.), 1991 WL 683899. Similarly, Defendant does not dispute 25 or otherwise address that the SCO defines near acuity “as clarity of vision at 20 inches or 26 less.” SCO, Appendix C, p. C-4, ¶ 15. Instead, Defendant argues the VE’s testimony was 27 28 1 “based on [] 20 years’ experience as a vocational consultant,” which the Defendant claims 2 was sufficient under the substantial evidence standard. Def.’s Mot. at 4 (citing AR 87). 3 In her testimony, the VE does not explain how she arrived at her conclusion that “it 4 would not make any difference” if a hypothetical individual had to wear sunglasses while 5 performing the occupation of a sorter, which requires frequent near acuity pursuant to the 6 DOT. AR 84. The VE testified that wearing sunglasses would not make a difference “as 7 long as the individual maintained productivity.” Id. It is unclear how someone who may 8 not be able to see at near acuity because he is wearing sunglasses would be able to maintain 9 productivity. Here, the ALJ made no attempt to clarify this issue, as she merely accepted 10 the VE’s conclusory testimony. 11 The DOT’s description for a sorter states in pertinent part as follows: “Sorts and 12 stacks cork sheets, using for making cork gaskets, according to size. Examines sheets and 13 rejects those with defects, such as cracks or holes. . . . near acuity: Frequently – Exists from 14 1/3 to 2/3 of the time.” DICOT 569.687-022 (G.P.O.), 1991 WL 683899. According to the 15 DOT, a person is required to utilize frequent near acuity” in order to satisfactorily perform 16 the job of a sorter. Id. Yet, the VE testified that this position can still be done wearing 17 sunglasses. AR 85. When there is an apparent conflict between the vocational expert’s 18 testimony and the DOT – for example, expert testimony that a claimant can perform an 19 occupation involving DOT requirements that appear more than the claimant can handle – 20 the ALJ is required to reconcile the inconsistency. Massachi, 486 F.3d at 1153-54. The 21 ALJ must ask the expert to explain the conflict and “then determine whether the vocational 22 expert’s explanation for the conflict is reasonable” before relying on the expert’s testimony 23 to reach a disability determination. Id.; see also SSR 00-4P, 2000 WL 1898704, at *2 (Dec. 24 4, 2000). Here, the ALJ did not clarify this conflict as she never discussed the specific 25 requirements of the job with the VE, and merely relied on the VE’s conclusory assertion 26 that there were no conflicts with the DOT. In her written decision, the ALJ stated simply 27 that “[p]ursuant to SSR 004-p, the undersigned has determined that the vocational expert’s 28 1 testimony is consistent with the information contained in the Dictionary of Occupational 2 Titles.” AR 37. 3 The Court finds that the foregoing inquiry was insufficient to satisfy the ALJ’s 4 “affirmative duty to ask the expert to explain the conflict and then determine whether the 5 vocational expert’s explanation for the conflict is reasonable before relying on the expert’s 6 testimony to reach a disability determination.” Rounds v. Comm’r Soc. Sec. Admin., 807 7 F.3d 996, 1003 (9th Cir. 2015) (quoting Zavalin, 778 F.3d at 846). 8 Additionally, the Court rejects Defendant’s argument that the Plaintiff waived his 9 right to challenge the inconsistency between his RFC and the positions the ALJ found he 10 could perform. The ALJ has an “affirmative duty” to fully develop the record. Rounds, 807 11 F.3d at 1003. This includes eliciting testimony explaining any “apparent conflict” between 12 the vocational expert’s testimony and what “the claimant can handle.” Zavalin, 778 F.3d 13 at 846; see also SSR 00-4p, 2000 WL 1898704, at *2 (explaining the ALJ’s duty to “fully 14 develop the record” as to whether there is consistency between VE occupational evidence 15 and the DOT). The law of this Circuit is clear that counsel’s failure to raise the apparent 16 conflict “does not relieve the ALJ of his express duty to reconcile apparent conflicts 17 through questioning.” Lamear, 865 F.3d at 1206 (citing Zavalin, 778 F.3d at 846). 18 Accordingly, this argument has not been waived. 19 Finally, the Court finds that the ALJ’s failure to recognize the conflict and resolve it 20 was error and one which the Court cannot find to be harmless. Specifically, the Court is 21 unable to determine from the record “whether substantial evidence supports the ALJ’s five- 22 step finding that [the claimant] could perform [the] work.” Zavalin, 778 F.3d at 848; see 23 also Lamear, 865 F.3d at 1206 (noting the absence of “anything in the record to explain 24 th[e] apparent discrepancy”); Pruett v. Colvin, 85 F. Supp. 3d 1152, 1158 (N.D. Cal. 2015) 25 (“The ALJ’s failure to do so may preclude the Court from determining whether the ALJ’s 26 decision is supported by substantial evidence.”). 27 / / / 28 / / / 1 2. Requirement for Light Exertion 2 Defendant does not dispute or otherwise address that a sorter position requires light 3 exertion as set forth in the DOT. DICOT 569.687-022 (G.P.O.), 1991 WL 683899. Instead, 4 Defendant’s main argument is that the VE’s testimony was “based on [] 20 years’ 5 experience as a vocational consultant,” which the Defendant argues was sufficient under 6 the substantial evidence standard. Def.’s Mot. at 4 (citing AR 87). 7 In her testimony, the VE does not explain how she arrived at her conclusion that 8 someone who had a cane in the right dominant hand could still perform a job that requires 9 light exertion (some walking), even if they were allowed to sit or stand at a workstation. 10 AR 84. Here, the ALJ made no attempt to clarify this issue, as she merely accepted the 11 VE’s conclusory testimony. 12 The DOT’s description for a sorter states in pertinent part as follows: 13 STRENGTH: Light Work – Exerting up to 20 pounds of force occasionally [1/3 of the time] and/or up to 10 pounds of force frequently [1/3 to 2/3 of the 14 time] and/or a negligible amount of force constantly [2/3 or more of the time] 15 to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible 16 amount, a job should be rated Light Work: (1) when it requires walking or 17 standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls and/or (3) when the 18 job requires working at a production rate pace entailing the constant pushing 19 and/or pulling of materials even though the weight of those materials is negligible. 20 21 DICOT 569.687-022 (G.P.O.), 1991 WL 683899. According to the DOT, a person is 22 required to be able to engage in the requirements of “light work” as defined above, in order 23 to satisfactorily perform the job of a sorter. Id. Yet, the VE testified that this position can 24 still be done with the use of a cane in the dominant hand without explaining how that could 25 be done if the person would have to occasionally walk or stand to adequately perform the 26 job. AR 85. When there is an apparent conflict between the vocational expert’s testimony 27 and the DOT – for example, expert testimony that a claimant can perform an occupation 28 involving DOT requirements that appear more than the claimant can handle – the ALJ is 1 required to reconcile the inconsistency. Massachi, 486 F.3d at 1153-54. The ALJ must ask 2 the expert to explain the conflict and “then determine whether the vocational expert’s 3 explanation for the conflict is reasonable” before relying on the expert’s testimony to reach 4 a disability determination. Id.; see also SSR 00-4P, 2000 WL 1898704, at *2 (Dec. 4, 5 2000). Here, the ALJ did not clarify this conflict as she never discussed the specific 6 requirements of the job with the VE, and merely relied on the VE’s conclusory assertion 7 that there were no conflicts with the DOT. In her written decision, the ALJ stated simply 8 that “[p]ursuant to SSR 004-p, the undersigned has determined that the vocational expert’s 9 testimony is consistent with the information contained in the Dictionary of Occupational 10 Titles.” AR 37. 11 The Court finds that the foregoing inquiry was insufficient to satisfy the ALJ’s 12 “affirmative duty to ask the expert to explain the conflict and then determine whether the 13 vocational expert’s explanation for the conflict is reasonable before relying on the expert’s 14 testimony to reach a disability determination.” Rounds, 807 F.3d at 1003 (quoting Zavalin, 15 778 F.3d at 846). 16 Additionally, for the same reasons set forth above, the Court finds that this argument 17 has not been waived and that it is not harmless error. 18 ii. Small Products Assembler (DOT 706.684-022) 19 The same holds true with regard to the job of a small product assembler, which is 20 defined by the DOT as follows: 21 Performs any combination of following repetitive tasks on assembly line to mass produce small products, such as ball bearings, automobile door locking 22 units, speedometers, condensers, distributors, ignition coils, drafting table 23 subassemblies, or carburetors: Positions parts in specified relationship to each other, using hands, tweezers, or tongs. Bolts, screws, clips, cements, or 24 otherwise fastens parts together by hand or using handtools or portable 25 powered tools. Frequently works at bench as members of assembly group assembling one or two specific parts and passing unit to another worker. Load 26 and unloads previously setup machines, such as arbor presses, drill presses, 27 taps, spots-welding machines, riveting machines, milling machines, or broaches, to perform fastening, force fitting, or light metal-cutting operation 28 1 on assembly line. May be assigned to different work stations as production needs require or shift from one station to another to reduce fatigue factor. May 2 be known according to product assembled. 3 DICOT 706.684-022 (G.P.O.), 1991 WL 679050. The DOT description also provides that 4 the small product assembler position requires “near acuity” “frequently – exists from 1/3 5 to 2/3 of the time.” Id. The “strength” requirement for the small product assembler is the 6 “light work” and is identical to that of a sorter. See supra. Again, there appears to be a 7 conflict between the DOT, which requires near acuity, and the VE’s testimony that 8 sunglasses would not affect the ability to perform the job requirements. Similarly, there is 9 a conflict between the DOT, which requires the ability to do light work (and the 10 requirement for some standing and walking), and the VE’s testimony that a cane in the 11 dominant hand would not affect the ability to perform the job requirements. For example, 12 it is unclear how a person who needs a cane in their dominant hand can perform the job 13 requirements of a small product assembler such as “passing unit[s] to another worker,” or 14 “load and unload previously setup machines,” even if it can be done sitting or standing. 15 None of this was clarified by the ALJ, who merely relied on the VE’s general conclusion 16 that was based on her 20 years of experience in the field as a VE. 17 Additionally, for the same reasons set forth above, the Court finds that this argument 18 has not been waived and that it is not harmless error. 19 iii. Marker (DOT 209.587-034) 20 The same holds true with regard to the job of a marker, which is defined by the DOT 21 as follows: 22 23 Marks and attached price tickets to articles of merchandise to record price and 24 identifying information. Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to 25 each article. Presses lever or plunger of mechanism that pins, pastes, ties, or 26 staples ticket to article. May record number and types of articles marked and pack them in boxes. May compare printed price tickets with entires on 27 purchase order to verify accuracy and notify supervisor of discrepancies. May 28 print information on tickets, using ticket-printing machine. . . 1 DICOT 706.684-022 (G.P.O.), 1991 WL 679050. The DOT description also provides that 2 the marker position also requires “near acuity” “frequently – exists from 1/3 to 2/3 of the 3 time.” Id. The “strength” requirement for the marker is “light work” and is identical to that 4 of a sorter and a small product assembler. See supra. Again, there appears to be a conflict 5 between the DOT, which requires near acuity, and the VE’s testimony that sunglasses 6 would not affect the ability to perform the job requirements. Similarly, there is a conflict 7 between the DOT, which requires the ability to do light work (and the requirement for some 8 standing and walking), and the VE’s testimony that a cane in the dominant hand would not 9 affect the ability to perform the job requirements. It is unclear how a person who needs a 10 cane in their dominant hand can perform the job requirements of a marker such as “marks 11 selling price by hand on boxes containing merchandise” even if it can be done sitting or 12 standing. None of this was clarified by the ALJ, who merely relied on the VE’s general 13 conclusion that was based on her 20 years of experience in the field as a VE. 14 Finally, for the same reasons set forth above, the Court finds that this argument has 15 not been waived and that it is not harmless error. Accordingly, the Court 16 RECOMMENDS GRANTING Plaintiff’s Motion and DENYING Defendant’s Motion 17 on the first issue of whether the ALJ failed to resolve an apparent conflict between 18 Plaintiff’s sunglasses and cane limitations with the VE’s finding that Plaintiff can perform 19 work as a sorter, small products assembler, and marker. 20 E. Subjective Symptoms Testimony 21 i. Relevant Law of Whether the ALJ Appropriately Considered Plaintiff’s Subjective Symptoms Testimony 22 23 The Ninth Circuit has established a two-part test to determine “whether a claimant’s 24 testimony regarding subjective pain or symptoms is credible[.]” See Lingenfelter v. Astrue, 25 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the 26 claimant has presented objective medical evidence of an underlying impairment ‘which 27 could reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting 28 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). The claimant “need not show that 1 her impairment could reasonably be expected to cause the severity of the symptom she has 2 alleged; she need only show that it could reasonably have caused some degree of the 3 symptom.” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 4 Second, if the claimant meets this first test and there is no evidence of malingering, 5 “the ALJ can reject the claimant’s testimony about the severity of her symptoms only by 6 offering specific, clear and convincing reasons for doing so.” Id. (internal quotation marks 7 and citations omitted). General findings and vague references to the record or testimony as 8 a whole is insufficient; the ALJ “must identify what testimony is not credible and what 9 evidence undermines the claimant’s complaints.” See Reddick v. Chater, 147 F.3d 715, 10 722 (9th Cir. 1998) (internal quotation marks and citations omitted). The ALJ’s findings 11 must be “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 12 discredit claimant’s testimony.” Thomas, 278 F.3d at 958. 13 In weighing a claimant’s testimony, an ALJ may consider a claimant’s (1) reputation 14 for truthfulness; (2) inconsistencies in testimony or between testimony and conduct; (3) 15 daily activities; and (3) inadequately explained failure to seek treatment or follow a 16 prescribed court of treatment. Orn, 495 F.3d at 636 (citations omitted). An ALJ may also 17 consider “testimony from physicians and third parties concerning the nature, severity, and 18 effect of the symptoms of which [the claimant] complains.” Thomas, 278 F.3d at 959 19 (citations omitted). If the ALJ’s finding is supported by substantial evidence, the court may 20 not second-guess his or her decision. Id. 21 ii. Summary of the Parties’ Arguments 22 Plaintiff argues that although the ALJ found that Plaintiff’s complaints were ‘highly 23 inconsistent both internally and with the medical evidence of record,’ “[t]he ALJ provided 24 no specific examples.” Pl.’s Mot. at 10 (citing AR 35). Plaintiff notes that the ALJ relied 25 on Dr. Harris’ opinion in support of her finding that “[a]t his August 21, 2018 neurology 26 consult with Jeffrey Paul Harris, M.D., the claimant stated that ‘he gets migraines about 27 once every few months.’” (Exhibit 14F). As Plaintiff points out, in the same medical 28 record, Dr. Harris noted that the patient has “left vestibular neuronitis [and] continues to 1 be incapacitated. . . his dizziness is not associated with his headaches.” AR 727. Plaintiff 2 also argues that the ALJ’s rejection of the Plaintiff’s subjective complaints to Dr. Virre was 3 insufficient. Pl.’s Mot. at 10. The ALJ gave little weight to Dr. Virre’s opinion on the basis 4 that “it appears that Dr. Virre’s questionnaire responses are little more than a restatement 5 of the claimant’s subjective limitations.” AR 37. Plaintiff argues that “[a]ccepting the 6 ALJ’s criticism of Dr. Virre’s opinions as true, then the statements made are the statements 7 of [Plaintiff] requiring a recitation of clear and convincing reasons for rejecting the 8 limitations described.” Pl.’s Mot. at 10. 9 Defendant opposes on the ground that “the ALJ appropriately considered that 10 Plaintiff largely failed to provide evidence demonstrating his alleged disability, that the 11 evidence that did exist contradicted Plaintiff’s rather dramatic subjective allegations, and 12 Plaintiff’s daily activities were likewise inconsistent with his alleged limitations.” Def.’s 13 Mot. at 6 (citing AR 33-35). 14 iii. The ALJ’s Treatment of Plaintiff’s Testimony 15 In her written decision, the ALJ found that she “finds that the claimant’s medically 16 determinable impairments could reasonably be expected to cause the alleged symptoms.” 17 AR 35. Nevertheless, the ALJ found that Plaintiff’s “statements concerning the intensity, 18 persistence and limiting effects of these symptoms are not entirely consistent with the 19 medical evidence and other evidence in the record for the reasons explained in this 20 decision.” Id. Specifically, the ALJ made the following findings: 21 At the hearing, the claimant alleged that he had ‘vertigo 24/7 all the time’ and that ‘when I walk I have to use my cane because my balance is so bad.’ The 22 claimant alleged, ‘Everywhere I go, including the house, I wear sunglasses.’ 23 The claimant alleged he had to wear sunglasses when watching television because the TV and bright lights aggravate his vertigo. The claimant also 24 alleged, ‘When I bend over down to pick stuff down and I stand up, there’s 25 times I see little stars in the air and then my vertigo gets so bad.’ The claimant testified that his doctor prescribed him a cane in March 2019, but that he had 26 been using a cane for two years. The claimant reiterated he used the cane every 27 time he was standing or walking, inside and outside the home, even when going to the bathroom. 28 1 By way of contrast, the claimant underwent a thorough evaluation for recent 2 complaints of intermittent numbness and tingling in the thumb and palm of 3 the hand on December 6, 2017. It was noted that the claimant ‘use[s] a cane but uses left hand to hold onto cane’ (Exhibit 9F/4-9). In the course of his 4 December 6, 2017, February 14, 2018, and October 3, 2018 neurological 5 examinations, the claimant demonstrated his ability to tandem walk steps without faltering. As the Dr. Suzan Khoromi, the neurologist, noted, he was 6 ‘able to sit up unsupported in a chair and stand and transfer without 7 assistance.’ Dr. Khoromi further noted, ‘The patient’s gait is normal with casual rates of ambulation. Ambulation was performed safely without 8 assistance’ (Exhibit 9F/7-8; 14F/17-18, 43-44). The claimant also seemingly 9 presented with no complaints of light sensitivity (Exhibit 9F/4-9; 14F/15-19, 41-45). Similarly, Dr. Friedman noted that [] the claimant walked with cane 10 [sic] but had ‘sunglasses in hand’ at his July 24, 2018 and February 4, 2019 11 visits (Exhibit 14F/10). At his March 29, 2019 follow-up neurological visit, Dr. Virre noted the clamant [sic] was tolerant to normal light levels (Exhibit 12 14F/5). 13 The claimant later alleged during the hearing that he could no longer play 14 video games on TV, ‘because they aggravate my vertigo even more.’ The 15 claimant asserted that the last time he played video games was ‘over three years ago.’ However, at his December 6, 2017 neurological evaluation for his 16 hand numbness, the claimant reported that ‘if he plays video games, the 17 problem gets worse.’ (Exhibit 14F/5). 18 The claimant alleged that he could only walk as far as his front yard. He 19 alleged that he could stand ‘less than 10 minutes.’ He asserted that he could lift and carry ‘no more than five pounds.’ However, the claimant admitted that 20 he did his own grocery shopping, prepared his own meals, did his own 21 laundry, did some house chores, and made his own bed and change linens as necessary. The claimant disclosed that he watched TV and movies with his 22 girlfriend and went out to eat together. At the hearing, the claimant asserted 23 that he had migraines ‘about once a week.’ At his August 21, 2018 neurology consult with Jeffrey Paul Harris, M.D., the claimant stated that ‘he gets 24 migraines about once every few months.’ (Exhibit 14F). Although, the 25 claimant testified having vertigo 24/7, the claimant typically demonstrated normal gait and station with seemingly no difficulty or need for an assistive 26 device. (Exhibit 12F, 14F). 27 Id. at 34-35 (some internal citations omitted). 28 1 The parties do not challenge the ALJ’s step one determination. The ALJ did not 2 claim Plaintiff was malingering and Defendant does not argue that the ALJ made any such 3 finding. Instead, the Court considers the second part of the Ninth Circuit’s two-part test: 4 whether the ALJ gave clear and convincing reasons for discounting Plaintiff’s subjective 5 symptom testimony. The clear and convincing standard is “not an easy requirement to 6 meet” and is “the most demanding [standard] in Social Security cases.” Trevizo v. 7 Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The Court finds that the ALJ did not articulate 8 clear and convincing reasons to discount Plaintiff’s testimony regarding the severity of her 9 symptoms for the reasons set forth below. 10 iv. Plaintiff’s Activities of Daily Living 11 The ALJ noted that Plaintiff's testimony about his ability to participate in daily 12 activities undermined his credibility about his limitations on how far he could walk, stand, 13 lift and carry. AR 34. It is proper for an ALJ to consider the claimant's daily activities in 14 making his credibility determination. See, e.g., Thomas, 278 F.3d at 958-59; see also 20 15 C.F.R. § 404.1529(c)(3)(i) (claimant's daily activities relevant to evaluating symptoms). 16 “One does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 17 260 F.3d 1044, 1050 (9th Cir. 2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 18 1989)). Only if a claimant's level of activities is inconsistent with his claimed limitations 19 would activities of daily living have any bearing on the claimant's credibility. Reddick, 157 20 F.3d at 722. 21 Here, the ALJ found that Plaintiff “admitted that he did his own grocery shopping, 22 prepared his own meals, did his own laundry, did some house chores, and made his own 23 bed and changed linens as necessary.” AR 35. The ALJ found that these activities 24 contradicted Plaintiff’s allegations that “he could only walk as far as his front yard,” “stand 25 less than 10 minutes” and lift and carry “no more than five pounds.” Id. at 34. The Court 26 disagrees. These daily activities are not inconsistent with Plaintiff’s allegations, and the 27 physical functions they require are not necessarily transferable to the work setting. Fair, 28 885 F.2d at 603 (“[M]any home activities are not easily transferable to what may be the 1 more grueling environment of the workplace, where it may be impossible to periodically 2 rest or take medication.”). Further, the ALJ ignored Plaintiff’s other testimony showing the 3 difficulties that Plaintiff faced in daily life in connection with these activities including that 4 Plaintiff testified that when he goes in the store, he uses an electric scooter, and that his 5 “sisters give [him] a ride.” AR 66, 71. Plaintiff also testified that although he is able to 6 make his bed, “it aggravates his vertigo, but [he] feel[s] more comfortable when [his] bed’s 7 made.” Id. at 77. He also stated that he can make it in “a little less than five minutes,” which 8 is consistent with his limitation that he can stand less than ten minutes. Id. The ALJ also 9 ignored that Plaintiff testified that although he does his own house chores, such as 10 sweeping, he “can’t really thoroughly do it” because it is too much for him and he often 11 has to ask his sister to finish up for him. Id. at 72. Similarly, although Plaintiff testified that 12 he watches TV with his girlfriend, he also said that sometimes “[he]’ll just go and watch 13 TV, or [he]’ll go back in [his] room and [he]’ll just lay down, because [he’s] just so dizzy.” 14 Id. at 75. 15 An ALJ cannot justify a credibility finding “by ignoring competent evidence in the 16 record that suggests an opposite result.” See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 17 Cir. 1984). That Plaintiff could participate in some daily activities does not contradict the 18 evidence of otherwise severe problems he encountered during the day. Diedrich v. 19 Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (finding legal error when an ALJ 20 discredited plaintiff based on her daily activity when the ALJ ignored other evidence of 21 Plaintiff’s daily limitations). Here, Plaintiff's daily activities do not constitute a clear and 22 convincing reason supported by substantial evidence in the record to discredit his report of 23 symptoms. 24 v. Objective Evidence in the Record 25 Although an ALJ may not disregard a claimant's testimony “solely because it is not 26 substantiated affirmatively by objective medical evidence” (see Robbins v. Soc. Sec. 27 Admin., 466 F.3d 880, 833 (9th Cir. 2006) (emphasis)), the ALJ may consider whether the 28 alleged symptoms are consistent with the medical evidence as one factor in his evaluation. 1 See Lingenfelter, 504 F.3d at 1040; see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2 2005) (“Although lack of medical evidence cannot form the sole basis for discounting pain 3 testimony, it is a factor that the ALJ can consider in his credibility analysis.”). Here, the 4 ALJ referred to some medical evidence in the record to discredit Plaintiff's symptom 5 testimony, but the ALJ largely failed to connect any specific portions of Plaintiff’s 6 testimony to the parts of the record supporting her decision. This error prevents the Court 7 from determining whether the ALJ’s decision was supported by substantial evidence. 8 Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding legal error where ALJ 9 failed to identify what testimony she found not credible and consequently “did not link that 10 testimony to the particular parts of the record supporting her non-credibility 11 determination.”). In other instances, the ALJ misrepresented or inaccurately summarized 12 some of the objective medical evidence in the record as set forth in more detail below. 13 One of the reasons the Commissioner argues in the Cross-Motion for Summary 14 Judgment that the ALJ appropriately considered Plaintiff’s subjective symptom testimony 15 is because she noted that there is no initial function report in the record. Def.’s Mot. at 7 16 (citing AR 33). The Commissioner is correct that the ALJ noted that “[t]here is no initial 17 function report from the claimant in evidence” and further stated that “[t]he claimant’s 18 representative completed the November 2017 and April 2018 appeal reports.” AR 33. The 19 ALJ also quoted excerpts from the reports and further noted that “the responses were less 20 than informative and not particularly coherent.” Id. However, contrary to the 21 Commissioner’s argument in the Cross-Motion for Summary Judgment, the ALJ did not 22 state that the lack of an initial function report was one of the reasons she found Plaintiff’s 23 subjective symptom testimony to not be consistent with the other evidence in the medical 24 record. To the extent the ALJ considered the lack of an initial function report or the 25 information in the November 2017 and April 2018 reports in discrediting Plaintiff’s 26 subjective symptom testimony, the Court finds that the ALJ failed to connect any specific 27 portions of Plaintiff’s testimony to what parts of the November 2017 and April 2018 reports 28 were inconsistent with that testimony. Brown-Hunter, 806 F.3d at 494 (finding legal error 1 where ALJ failed to identify the testimony she found not credible and consequently “did 2 not link that testimony to the particular parts of the record supporting non-credibility 3 determination.”). Additionally, as the Ninth Circuit has held “An ALJ may not disregard 4 [a claimant’s] testimony solely because it is not substantiated affirmatively by objective 5 medical evidence.” See Trevizo, 871 F.3d at 679 (internal quotation marks and citations 6 omitted). 7 The ALJ also noted that she gave “little weight” to the questionnaire completed by 8 Dr. Eric Virre on April 13, 2018 because “it appears that the Dr. Virre’s questionnaire 9 responses are little more than a restatement of the claimant’s subjective limitations.” AR 10 36 (citing Exhibits 11F 14F); see also AR 666-669, 735. Dr. Virre, one of Plaintiff’s 11 treating physicians, identified the following symptoms associated with Plaintiff’s 12 Meniere’s attacks: vertigo, nausea, malaise, photosensitivity, sensitivity to noise, visual 13 disturbance, mood changes, mental confusion, inability to concentrate, and 14 fatigue/exhaustion. Id. at 667. Dr. Virre also opined that Plaintiff’s symptoms are 15 “constant” and “severe enough to interfere with [his] attention and concentration needed 16 to perform even simple work tasks.” Id. at 669. The Court finds that the ALJ failed to 17 provide specific, clear, and convincing reasons for disbelieving the entirety of Dr. Virre’s 18 report even if it was a restatement of Plaintiff’s subjective limitations. Specifically, the ALJ 19 failed to identify which of Plaintiff’s subjective symptoms and related limitations identified 20 in the report were not consistent with the record. 21 The ALJ noted that Plaintiff “alleged that he had to wear sunglasses when watching 22 television, because the TV and bright lights aggravate his vertigo.” Id. at 34. 23 Notwithstanding this testimony, the ALJ observed in her opinion that “[t]he claimant also 24 seemingly presented with no complaints of light sensitivity (Exhibit 9F/4-9, 14F/15-19, 25 41-45).” Id. at 34. The Court finds that the ALJ misrepresented the record to support her 26 conclusion. The Court’s own review of Exhibit 9F, page four, revealed that at his 27 November 17, 2017 appointment with Dr. Virre, Plaintiff had been “complaining of 28 photophobia” and had “[d]izziness aggravated by head movements, watching television.” 1 AR 659. It is inaccurate and misleading for the ALJ to cite that record in support of her 2 conclusion that Plaintiff did not present with complaints of light sensitivity. Although there 3 are some progress notes in Plaintiff’s record that indicate that at some of Plaintiff’s 4 appointments, light sensitivity was not discussed or otherwise noted, the ALJ cannot 5 “cherry-pick” certain portions of medical evidence found in the record to support an 6 adverse credibility finding when there is other contradicting evidence in the record 7 suggesting the opposite. See Gallant, 753 F.2d at 1456; see also AR 489, 527, 646, 741, 8 753 (contradicting evidence in the record). 9 The ALJ also discredited Plaintiff’s testimony about “having vertigo 24/7” because 10 “the claimant typically demonstrated normal gait and station with seemingly no difficulty 11 or need for an assistive device (Exhibit 12F, 14F).” AR 35. Once again, the ALJ 12 misrepresented the record in support of her conclusion. Upon the Court’s review of Exhibit 13 12F, page four, Dr. Edward Sheldon noted Plaintiff’s use of an assistive device in that 14 Plaintiff complained of thumb pain due to “constant gripping of his single point cane that 15 he uses for stability due to chronic vertigo.” AR 673. 16 Additionally, the ALJ found Plaintiff’s testimony to be inconsistent with the record 17 because Plaintiff testified at the hearing that the last time he played a video game was “over 18 three years ago” because it aggravated his vertigo. AR 34. The ALJ noted that at Plaintiff’s 19 December 6, 2017 neurological evaluation for his hand numbness, the claimant reported 20 that “if he plays video games, the problem gets worse.” Id. While the ALJ is correct that 21 Dr. Khoromi’s progress note indicates that Plaintiff reported that his hand numbness gets 22 worse if he plays video games, it is not clear from the record whether Plaintiff was in fact 23 playing video games or simply reporting to his doctor the types of activities that aggravated 24 his symptoms. AR 660. These findings do not necessarily contradict Plaintiff’s allegations 25 regarding the severity of the vertigo he experiences and his light and exertional limitations. 26 Trevizo, 871 F.3d at 676. The ALJ also discounted Plaintiff’s subjective symptom 27 testimony because she found that his statement that he gets migraine headaches every week 28 1 is not supported by the record. See AR 35. While this is a legitimate reason to discredit 2 Plaintiff’s testimony, it does not, by itself, constitute a clear and convincing reason. 3 In sum, the Court does not find the objective medical evidence constitutes a clear 4 and convincing reason to discredit Plaintiff's subjective symptoms. The Court recommends 5 that Plaintiff’s symptom testimony, upon remand, be reexamined consistent with this 6 opinion and the required clear and convincing standard. Accordingly, the Court 7 RECOMMENDS GRANTING Plaintiff’s Motion and DENYING Defendant’s Motion 8 on this issue. 9 VI. Remand Versus Award for Benefits 10 The law is well established that the decision whether to remand for further 11 proceedings or simply aware benefits is within the discretion of the Court. McAllister v. 12 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see also Lewin v. Schweiker, 654 F.2d 631, 13 635 (9th Cir. 1981). Remand is warranted where additional proceedings could remedy 14 defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984; 15 Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful 16 purpose would be served by further administrative proceedings, Kornock v. Harris, 648 17 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 18 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay 19 the receipt of benefits for which the disabled plaintiff is entitled, Bilby v. Schweiker, 762 20 F.2d 716, 710 (9th Cir. 1985). 21 Here, the Court has concluded that further administrative proceedings would serve 22 a meaningful purpose to address the errors identified herein. Therefore, this Court 23 RECOMMENDS REVERSING the ALJ’s decision and REMANDING for further 24 proceedings to address the errors noted in this Order. 25 VII. CONCLUSION 26 For the reasons set forth above, this Court RECOMMENDS that Plaintiff’s Motion 27 for Summary Judgment be GRANTED, that Defendant’s Cross-Motion for Summary 28 1 || Judgment be DENIED, and that judgment be entered REVERSING the decision of the 2 || Commissioner and REMANDING this matter for further administrative proceedings. 3 IT IS HEREBY ORDERED that any written objections to this Report and 4 || Recommendation must be filed with the Court and served on all parties on or before April 5 ||}29, 2021. The document should be captioned “Objections to Report and 6 || Recommendation.” 7 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 8 || the Court and served on all parties on or before May 13, 2021. The parties are advised that 9 failure to file objections within the specified time may waive the right to raise those 10 || objections on appeal of the Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 11 1998); Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991). 12 || Dated: April 15, 2021 XO 13 QF 14 Honorable Linda Lopez 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 50