Layne v. Saul, No. 1:2019cv03191 - Document 18 (E.D. Wash. 2020)

Court Description: ORDER Granting 14 in Part Plaintiff's Motion for Summary Judgment and Remanding for Further Proceedings. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Layne v. Saul Doc. 18 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1809 Page 1 of 15 1 2 3 4 5 6 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON Aug 10, 2020 SEAN F. MCAVOY, CLERK 10 11 12 SARAH L., No. 1:19-CV-03191-JTR Plaintiff, 13 14 15 16 17 18 v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 19 20 21 22 23 24 25 26 27 28 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 14, 16. Attorney D. James Tree represents Sarah L. (Plaintiff); Special Assistant United States Attorney Benjamin Groebner represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 7. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS IN PART Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and REMANDS the matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 405(g). ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com Case 1:19-cv-03191-JTR 1 ECF No. 18 filed 08/10/20 PageID.1810 Page 2 of 15 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on July 26, 2013, alleging disability since January 4 16, 2012, due to anxiety, thyroid problems, right wrist pain, obesity, learning 5 disability, swollen feet, and depression. Tr. 124-25. The applications were denied 6 initially and upon reconsideration. Tr. 226-34, 238-49. Administrative Law Judge 7 (ALJ) Wayne Araki held a hearing on August 18, 2015, Tr. 38-82, and issued an 8 unfavorable decision on November 4, 2015, Tr. 193-207. Plaintiff requested 9 review by the Appeals Council. Tr. 301-03. The Appeals Council granted the 10 request for review, and remanded the claim for further proceedings on February 8, 11 2017. Tr. 214-18. Judge Araki held a remand hearing on May 15, 2018, Tr. 83-121, and issued 12 13 a second unfavorable decision on September 26, 2018, Tr. 13-27. Plaintiff again 14 requested review by the Appeals Council. Tr. 382-85. The Appeals Council denied 15 Plaintiff’s request for review on June 17, 2019. Tr. 1-5. The ALJ’s September 2018 16 decision thus became the final decision of the Commissioner, which is appealable 17 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 18 judicial review on August 15, 2019. ECF No. 1. STATEMENT OF FACTS 19 20 Plaintiff was born in 1982 and was 29 years old as of her alleged onset date. 21 Tr. 26. She completed high school at the age of 20 with special education services. 22 Tr. 494, 631, 986. Her work history has consisted primarily of grocery bagging and 23 retail stocking and checking. Tr. 42-48. She has alleged an inability to work due to 24 a combination of mental impairments, including limited literacy and depression 25 and anxiety following the death of her mother, and physical impairments, including 26 shortness of breath, back pain, and swelling in her legs. Tr. 62, 67-72, 430. 27 /// 28 /// ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 2 Case 1:19-cv-03191-JTR 1 2 ECF No. 18 filed 08/10/20 PageID.1811 Page 3 of 15 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 23 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 26 four, the burden of proof rests upon the claimant to establish a prima facie case of 27 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 28 met once a claimant establishes that a physical or mental impairment prevents the ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 3 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1812 Page 4 of 15 1 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 2 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 3 to step five, and the burden shifts to the Commissioner to show (1) the claimant 4 can make an adjustment to other work; and (2) the claimant can perform specific 5 jobs that exist in the national economy. Batson v. Commissioner of Social Sec. 6 Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 7 adjustment to other work in the national economy, the claimant will be found 8 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 9 ADMINISTRATIVE DECISION 10 11 12 13 14 On September 26, 2018, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 16, 2012. Tr. 15. At step two, the ALJ determined Plaintiff had the following severe 15 impairments: depressive disorder, borderline intellectual functioning, learning 16 disorder, muscle/soft tissue disorder, left hip degenerative joint disease, right knee 17 osteoarthritis, obesity, and chronic obstructive pulmonary disease. Tr. 16. 18 At step three, the ALJ found Plaintiff did not have an impairment or 19 combination of impairments that met or medically equaled the severity of one of 20 the listed impairments. Tr. 17-20. 21 22 23 24 25 26 27 28 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found she could perform sedentary exertion level work with the following limitations: The claimant can lift/carry up to ten pounds occasionally and less than ten pounds frequently. She can stand or walk for 15-minute intervals for up to two hours in an eight-hour workday, and can sit for two-hour intervals for up to eight hours total per day. The claimant can frequently climb ramps and stairs and can never climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can occasionally reach overhead. She cannot ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 4 Case 1:19-cv-03191-JTR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ECF No. 18 filed 08/10/20 PageID.1813 Page 5 of 15 work at exposed heights or operate heavy equipment, otherwise she should have no more than occasional exposure to hazards. The claimant can remember, understand, and carry out instructions and tasks generally required by occupations with an SVP rating of 1-2. There should be no reading as part of the training or during performance of the job tasks. She can also adjust to work setting changes generally associated with occupations with an SVP rating of 1-2. The claimant is limited to occasional exposure to atmospheric conditions. Job duties should not require handling of money such as would be required by a cashier. Once job tasks are learned, the claimant is able to complete work tasks with supervision typically found in occupations with an SVP of 1-2. The claimant is limited to occasional, superficial interaction with the public and occasional interaction with coworkers and supervisors. Tr. 20. At step four, the ALJ found Plaintiff was unable to perform her past relevant work as a bagger or laundry worker. Tr. 25. At step five the ALJ found, considering Plaintiff’s age, education, work 15 experience, and residual functional capacity, there were jobs that existed in 16 significant numbers in the national economy that Plaintiff could perform, 17 specifically identifying the representative occupations of bench hand, table worker, 18 and masker. Tr. 26. 19 The ALJ thus concluded Plaintiff was not under a disability within the 20 meaning of the Social Security Act at any time from the alleged onset date through 21 the date of the decision. Tr. 27. ISSUES 22 23 The question presented is whether substantial evidence supports the ALJ’s 24 decision denying benefits and, if so, whether that decision is based on proper legal 25 standards. 26 Plaintiff contends the ALJ erred by (1) failing to find Plaintiff’s conditions 27 met Listing 12.05B; (2) improperly rejecting Plaintiff’s symptom testimony; and 28 (3) improperly rejecting medical opinion evidence. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 5 Case 1:19-cv-03191-JTR ECF No. 18 1 2 3 filed 08/10/20 PageID.1814 Page 6 of 15 DISCUSSION 1. Medical Opinion Evidence Plaintiff asserts the ALJ improperly evaluated the medical opinion evidence 4 by offering insufficient reasons for rejecting Dr. Haloman and Ms. Hardisen and 5 by failing to reevaluate a number of medical opinions that were rejected in the first 6 unfavorable decision. ECF No. 14 at 17-19. 7 a. Dr. Haloman 8 When an examining physician’s opinion is contradicted by another 9 physician, the ALJ is required to provide “specific and legitimate reasons” to reject 10 the opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The specific 11 and legitimate standard can be met by the ALJ setting out a detailed and thorough 12 summary of the facts and conflicting clinical evidence, stating his interpretation 13 thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989). The ALJ is required to do more than offer his conclusions, he “must set 15 forth his interpretations and explain why they, rather than the doctors’, are 16 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 17 Plaintiff underwent a consultative psychological exam with Dr. Elsa 18 Haloman in September 2013. Tr. 630-36. Dr. Haloman diagnosed Plaintiff with 19 learning disorder, adjustment disorder with depressed mood, history of substance 20 abuse, borderline intellectual functioning, obesity, and seizures. Tr. 634. She 21 opined Plaintiff was generally able to perform simple, routine tasks, could interact 22 appropriately with others and accept instructions, and was able to maintain regular 23 attendance and complete a regular workweek without interruptions from a 24 psychiatric condition. Tr. 635. However, she opined Plaintiff was not able to 25 perform work activities on a consistent basis without special or additional 26 instructions, and that she would need very simple and clear tasks and likely need a 27 higher level of supervision. Id. 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 6 Case 1:19-cv-03191-JTR 1 ECF No. 18 filed 08/10/20 PageID.1815 Page 7 of 15 In the first unfavorable decision in 2015, the ALJ failed to address the most 2 restrictive limitations, which prompted the Appeals Council to remand the claim 3 for further proceedings. Tr. 216-17. On remand, the ALJ gave the majority of the 4 opinion some weight, but gave little weight to the opinion that Plaintiff would be 5 unable to perform on a consistent basis without special or additional instruction 6 and would likely need a higher level of supervision. Tr. 23. The ALJ found this 7 portion of the opinion to be unexplained and inconsistent with the other portions of 8 the opinion finding Plaintiff capable of performing simple work tasks and 9 maintaining regular attendance. Tr. 23-24. 10 Plaintiff argues that no inconsistency is present and further asserts the ALJ is 11 incorrect that Dr. Haloman did not cite a basis for her opinion. ECF No. 14 at 17- 12 18. Defendant argues the ALJ reasonably interpreted the opinion as internally 13 inconsistent and lacking in sufficient explanation. ECF No. 16 at 17-18. 14 The Court finds the ALJ’s discussion to be unsupported by substantial 15 evidence. The ALJ reasoned Dr. Haloman “did not cite a basis for these limitations 16 or explain how her examination findings support these limitations.” Tr. 23. The 17 ALJ additionally stated “her examination findings indicate that the claimant was 18 able to follow the instructions and perform mental status examination tasks without 19 additional instruction.” Both of these statements fail to take into account Dr. 20 Haloman’s statement that her recommendation for special or additional instruction 21 was “based on her need for lots of promptings and multiple explanations of 22 instructions during this assessment.” Tr. 635. The ALJ cited to two pages of Dr. 23 Haloman’s report for his assertion that Plaintiff was able to perform mental status 24 exam tasks without additional instruction; however the two cited pages contain no 25 such indication. Tr. 633-34. The mental status exam results reported by Dr. 26 Haloman do not indicate one way or the other how well Plaintiff responded to 27 directions. The only such comment is in the medical source statement portion of 28 the exam report where Dr. Haloman stated Plaintiff needed lots of promptings and ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 7 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1816 Page 8 of 15 1 multiple explanations of instructions. The ALJ’s rationale is therefore not 2 supported by substantial evidence. 3 The ALJ further found Dr. Haloman’s assessed limitations to be internally 4 contradictory. Tr. 23-24. The Court does not find the ALJ’s rationale to be a 5 reasonable interpretation of the exam report. There is no internal inconsistency 6 between an individual’s ability to maintain regular attendance at work without 7 psychiatric interruptions and being able to perform work activities consistently 8 without additional special supervision. Being present at work and being capable of 9 performing simple tasks do not equate with performing work tasks consistently. 10 11 The assessed limitations address different work-related functions. On remand, the ALJ will reconsider Dr. Haloman’s opinion in connection 12 with the entire medical record. 13 b. Ms. Hardisen 14 An ALJ may discount the opinion of an “other source,” such as a nurse 15 practitioner, if he provides “reasons germane to each witness for doing so.” Molina 16 v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 17 In August 2017, Plaintiff’s treating ARNP Mary Alice Hardisen completed a 18 medical source statement regarding Plaintiff’s limitations. Tr. 1374-75. She noted 19 Plaintiff’s impairments to include seizures, carpal tunnel syndrome, and lumbar 20 radiculopathy. Tr. 1374. She opined Plaintiff needed to lie down several times per 21 day due to back pain and that if she were working full-time, she would likely miss 22 four or more days of work per month. Tr. 1374-75. 23 The ALJ gave this opinion little weight, finding Ms. Hardisen did not 24 provide any objective basis for the opinion or explain how Plaintiff’s alleged 25 symptoms would force her to miss work. Tr. 24. The ALJ further found the record 26 failed to support the extent of the limitations, and that the opinion was inconsistent 27 with Plaintiff’s ability to work as a babysitter at times. Id. 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 8 Case 1:19-cv-03191-JTR 1 ECF No. 18 filed 08/10/20 PageID.1817 Page 9 of 15 Plaintiff argues the opinion is supported by the objective evidence, including 2 Plaintiff’s positive Tinel’s signs, and her well-documented morbid obesity. ECF 3 No. 14 at 18-19. Plaintiff further argues that her babysitting activity is not 4 inconsistent with this opinion, as she testified she called out sick many days, 5 consistent with Ms. Hardisen’s opinion. Id. Finally, Plaintiff argues the ALJ 6 ignored the fact that Ms. Hardisen commented Plaintiff’s condition would worsen 7 with full time work. Id. Defendant asserts the ALJ reasonably found the opinion 8 inconsistent with the objective evidence, and argues the opinion is lacking in 9 explanation as to how positive Tinel’s signs equates to needing to lie down or miss 10 work. ECF No. 16 at 18-20. 11 The Court finds the ALJ’s explanation is germane and supported by 12 substantial evidence. Ms. Hardisen offered very little explanation for the assessed 13 limitations and did not indicate any relevant objective evidence in support of 14 Plaintiff’s alleged back pain and need to recline throughout the day. Tr. 1374. 15 While Plaintiff points to evidence of her obesity as support for the limitations, the 16 ALJ’s reading of the report as lacking in explanation is a reasonable interpretation. 17 “If the evidence can reasonably support either affirming or reversing a decision, we 18 may not substitute our judgment for that of the Commissioner.” Lingenfelter v. 19 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 20 However, because this claim is being remanded for reconsideration of other 21 evidence, the ALJ shall consider the entire record when completing the five-step 22 sequential evaluation process. 23 c. Other opinion evidence 24 Plaintiff argues the ALJ erred in adopting and incorporating findings from 25 the first unfavorable decision regarding a number of medical opinions. ECF No. 14 26 at 17. Plaintiff faults the ALJ for failing to make reference to the updated medical 27 record or consider how new evidence may have impacted the analysis of the older 28 opinions. Id. Defendant points out that each of the opinions was discounted based ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 9 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1818 Page 10 of 15 1 on inconsistency with their own findings and other medical opinion evidence. ECF 2 No. 16 at 14-17. Defendant further argues Plaintiff failed to identify any specific 3 subsequent evidence that undercuts the ALJ’s original analysis. Id. 4 The Court finds Plaintiff has not briefed this issue with sufficient specificity 5 to find the ALJ erred. The court will not “manufacture arguments for an appellant” 6 and therefore will not consider claims that were not actually argued in a party’s 7 opening brief. Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 8 1994). However, because this claim is being remanded for reconsideration of other 9 10 evidence, the ALJ shall consider the entire record when completing the five-step 11 sequential evaluation process, providing rationale for the weight assigned to each 12 opinion. 13 2. 14 Step three Plaintiff argues the ALJ erred in making inadequate step three findings. 15 Specifically, she asserts the evidence supports finding Plaintiff’s conditions meet 16 the severity of Listing 12.05B for intellectual disorder. ECF No. 14 at 11-13. 17 At step three of the sequential evaluation process, the ALJ considers whether 18 one or more of the claimant’s impairments meets or equals an impairment listed in 19 Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each 20 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 21 established for a claimant’s impairment to meet the Listing. Tackett v. Apfel, 180 22 F.3d 1094, 1099 (9th Cir. 1999). If a condition meets or equals a Listing, the 23 claimant is considered disabled without further inquiry. 20 C.F.R. § 404.1520(d). 24 Listing 12.05B is met when the individual has a full-scale IQ of 70 or below 25 and significant deficits in adaptive functioning manifested by an extreme limitation 26 of one or marked limitation of two of the “paragraph B” criteria, and the evidence 27 supports the conclusion that the disorder began prior to the claimant’s attainment 28 of age 22. 20 C.F.R. Part 404, Subpart P, Appendix 1, §12.05B. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 10 Case 1:19-cv-03191-JTR 1 ECF No. 18 filed 08/10/20 PageID.1819 Page 11 of 15 The ALJ found Plaintiff’s conditions did not meet or equal any listed 2 impairment. Tr. 17-20. He found Plaintiff had no more than moderate limitations in 3 any of the Paragraph B areas of functioning, and found Plaintiff did not have 4 reliable IQ testing in the necessary range to meet Listing 12.05B. Tr. 18-20, 199. 5 Plaintiff argues the ALJ improperly rejected the IQ testing from 2001 that 6 found she had a full-scale IQ under 70. ECF No. 14 at 11-12. She further argues 7 that opinion evidence supports a finding of marked and extreme limitations in the 8 Paragraph B criteria, and that the ALJ failed to address these opinions in the step 9 three discussion. Id. at 12. Defendant argues that the ALJ made findings on the 10 Paragraph B criteria that are supported by substantial evidence and reasonably 11 found the 2001 IQ testing to be an outlier negated by other testing in the record 12 finding Plaintiff’s IQ to be higher than listing-level. ECF No. 16 at 2-8. 13 The Court finds the ALJ did not err. The ALJ extensively discussed the 14 various IQ scores in the record, and offered a reasonable explanation for finding 15 the 2001 testing to be an outlier, specifically noting other testing that was 16 substantially higher and noting Plaintiff’s admitted drug use at the time the 2001 17 testing was conducted. Tr. 20, 199. Listing 12.00 notes that while IQ scores are 18 generally presumed to be an accurate reflection of an individual’s intellectual 19 functioning, other evidence in the record can suggest otherwise, including other 20 inconsistent IQ scores. Listing 12.00H.2.d. While Plaintiff offers an alternative 21 interpretation of the record, she does not indicate why the ALJ’s interpretation was 22 not reasonable. 23 Furthermore, Plaintiff offers no specific argument in favor of finding marked 24 or extreme limitations in the Paragraph B criteria. ECF No. 14 at 12. She merely 25 asserts the various opinion evidence supports listing-level impairment, but does not 26 specify which of the Paragraph B criteria she is arguing are satisfied. Id. The Court 27 finds the ALJ offered a reasonable explanation for his findings on each of the 28 criteria, and that his decision is supported by substantial evidence. Tr. 18. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 11 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1820 Page 12 of 15 Therefore, the ALJ did not err in finding Plaintiff’s impairments did not 1 2 meet or equal Listing 12.05B. However, as this claim is being remanded for a new 3 hearing and decision on the merits by a new ALJ, the ALJ will make findings 4 regarding each of the steps of the sequential evaluation process, including Step 5 Three. 6 3. 7 8 Plaintiff’s subjective statements Plaintiff contends the ALJ erred by improperly rejecting her subjective statements. ECF No. 14 at 13-15. 9 It is the province of the ALJ to make credibility determinations. Andrews v. 10 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 11 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 12 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 13 medical impairment, the ALJ may not discredit testimony as to the severity of an 14 impairment merely because it is unsupported by medical evidence. Reddick v. 15 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 16 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 17 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 18 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 19 insufficient: rather the ALJ must identify what testimony is not credible and what 20 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 21 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 22 The ALJ concluded Plaintiff’s medically determinable impairments could 23 possibly produce the alleged symptoms; however, Plaintiff’s statements concerning 24 the intensity, persistence and limiting effects of those symptoms were not entirely 25 consistent with the medical evidence and other evidence in the record. Tr. 21. The 26 ALJ found Plaintiff’s allegations to be unsupported by the objective medical 27 evidence, noted her mental impairments had improved and stabilized, and found 28 her alleged limitations to be inconsistent with demonstrated activities such as ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 12 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1821 Page 13 of 15 1 babysitting and exercising. Tr. 21-23. The ALJ also adopted by reference the 2 rationale from his first decision in 2015, in which he noted normal objective 3 findings, Plaintiff’s ability to tend to her self-care, conflicting IQ testing and 4 evidence regarding Plaintiff’s past work, and relatively normal mental status exam 5 findings. Tr. 200-02 6 Plaintiff argues the ALJ failed to acknowledge substantial evidence 7 supporting her allegations of needing to lie down and elevate her legs to treat 8 swelling and did not adequately consider the complicating element of Plaintiff’s 9 obesity when assessing her subjective statements. ECF No. 14 at 13-15. Plaintiff 10 further argues the ALJ improperly used Plaintiff’s minimal daily activities against 11 her, despite the record showing no conflicts between her activities and her 12 allegations. Id. Defendant argues the ALJ identified objective medical evidence 13 that was unsupportive of Plaintiff’s alleged impairments and reasonably interpreted 14 Plaintiff’s activities as inconsistent with her allegations. ECF No. 16 at 8-14. 15 Defendant also argues the ALJ reasonably identified inconsistent statements in the 16 record that undermined the reliability of Plaintiff’s reports. Id. 17 A claimant’s daily activities may support an adverse credibility finding if the 18 activities contradict her other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 19 2007). The ALJ reasonably interpreted Plaintiff’s near full-time work activity and 20 regular exercise, along with her relatively normal household and self-care as 21 inconsistent with her allegations of needing to recline and elevate her legs for 22 much of the day. Tr. 22-23, 201-02. ALJs may also consider a claimant’s 23 inconsistent statements in assessing the reliability of her reports. Tonapetyan v. 24 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The ALJ pointed to Plaintiff’s 25 varying reports regarding the end of her prior work activity and the lack of 26 explanation for her deviating reports. Tr. 200-01. Finally, although it cannot serve 27 as the sole ground for rejecting a claimant’s symptom statements, an ALJ may 28 consider the extent to which the objective medical evidence supports the severity ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 13 Case 1:19-cv-03191-JTR ECF No. 18 filed 08/10/20 PageID.1822 Page 14 of 15 1 of the claimant’s allegations. The ALJ reasonably interpreted the objective 2 evidence as failing to support the extent of Plaintiff’s allegations. The ALJ 3 therefore did not err in finding Plaintiff’s subjective reports to be unreliable. 4 However, as this claim is being remanded on other bases, the ALJ will issue 5 a new decision and reevaluate Plaintiff’s subjective allegations, making specific 6 clear and convincing findings regarding the reliability of those reports. CONCLUSION 7 8 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 9 payment of benefits. The Court has the discretion to remand the case for additional 10 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 11 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 12 further administrative proceedings would serve no useful purpose. Id. Remand is 13 appropriate when additional administrative proceedings could remedy defects. 14 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 15 finds that further development is necessary for a proper determination to be made. 16 The ALJ’s RFC determination is not supported by substantial evidence in 17 this case and must be reevaluated. On remand, the ALJ shall reevaluate the medical 18 evidence and Plaintiff’s subjective complaints and make new findings on each of 19 the five steps in the sequential process, taking into consideration any other 20 evidence or testimony relevant to Plaintiff’s disability claim. According to Agency 21 policy, the claim will be assigned to a different ALJ. See SSA Hearing, Appeals, 22 and Litigation Law Manual (HALLEX) I-3-7-40(B), I-2-1-55(D)(5-6). 23 Accordingly, IT IS ORDERED: 24 1. 25 26 27 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 14 Case 1:19-cv-03191-JTR 1 2 3. ECF No. 18 filed 08/10/20 PageID.1823 Page 15 of 15 The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 3 4. An application for attorney fees may be filed by separate motion. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 6 the file shall be CLOSED. 7 IT IS SO ORDERED. 8 DATED August 10, 2020. 9 10 11 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 15

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