Hughes v. Kijakazi, No. 2:2022cv00121 - Document 12 (E.D. Wash. 2022)
Court Description: ORDER granting Plaintiff's 9 Motion for Summary Judgment and denying Defendant's 10 Motion for Summary Judgment. This case is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings in accordance with this Order. Signed by Judge Thomas O. Rice. (BF, Paralegal)
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Hughes v. Kijakazi Doc. 12 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1020 Page 1 of 19 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 CHRISTOPHER DOUGLAS H., NO. 2:22-CV-0121-TOR Plaintiff, 8 9 10 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 9, 10. Plaintiff is represented by Jordan Goddard. Defendant 15 is represented by SAUSA Benjamin J. Groebner. The Court has reviewed the 16 administrative record and the parties’ completed briefing and is fully informed. 17 For the reasons discussed below, the Court GRANTS Plaintiff’s Motion and 18 DENIES Defendant’s Motion. 19 JURISDICTION 20 The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 2:22-cv-00121-TOR 1 2 ECF No. 12 filed 12/27/22 PageID.1021 Page 2 of 19 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. (quotation and citation omitted). In determining whether this 11 standard has been satisfied, a reviewing court must consider the entire record as a 12 whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1022 Page 3 of 19 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be unable “to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than 12 10 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 11 impairment must be “of such severity that [he or she] is not only unable to do [his 12 or her] previous work[,] but cannot, considering [his or her] age, education, and 13 work experience, engage in any other kind of substantial gainful work which exists 14 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 § 17 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 18 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 19 “substantial gainful activity,” the Commissioner must find that the claimant is not 20 disabled. 20 C.F.R. § 404.1520(b). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 2:22-cv-00121-TOR 1 ECF No. 12 filed 12/27/22 PageID.1023 Page 4 of 19 If the claimant is not engaged in substantial gainful activities, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 4 from “any impairment or combination of impairments which significantly limits 5 [his or her] physical or mental ability to do basic work activities,” the analysis 6 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 7 does not satisfy this severity threshold, however, the Commissioner must find that 8 the claimant is not disabled. Id. 9 At step three, the Commissioner compares the claimant’s impairment to 10 several impairments recognized by the Commissioner to be so severe as to 11 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 12 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 404.1520(d). 15 If the severity of the claimant’s impairment does meet or exceed the severity 16 of the enumerated impairments, the Commissioner must pause to assess the 17 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations (20 C.F.R. § 20 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 2:22-cv-00121-TOR 1 ECF No. 12 filed 12/27/22 PageID.1024 Page 5 of 19 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 work experience. Id. If the claimant is capable of adjusting to other work, the 12 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 13 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 14 analysis concludes with a finding that the claimant is disabled and is therefore 15 entitled to benefits. Id. 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1025 Page 6 of 19 1 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 2 700 F.3d 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 On December 6, 2017, Plaintiff filed an application for Title II disability 5 insurance benefits, alleging an onset date of August 22, 2016. Tr. 306-07. The 6 application was denied initially, and on reconsideration. Tr. 164. Plaintiff 7 appeared at a hearing before an administrative law judge (“ALJ”) on January 8, 8 2020. Tr. 69-109. On February 5, 2020, the ALJ denied Plaintiff’s claim. Tr. 9 164-177. The Appeals Council remanded the matter back to the ALJ on August 10 18, 2020. Tr. 185-87. Thereafter, the ALJ held another hearing on January 6, 11 2021. Tr. 110-137. On April 6, 2021, the ALJ denied Plaintiff’s claim. Tr. 25-48. 12 As a threshold matter, the ALJ found Plaintiff met the insured status 13 requirements of the Social Security Act through December 31, 2020. Tr. 30. At 14 step one of the sequential evaluation analysis, the ALJ found Plaintiff had not 15 engaged in substantial gainful activity from August 22, 2016, the alleged onset 16 date, through December 31, 2020, the date last insured. Tr. 31. At step two, the 17 ALJ found Plaintiff had the following severe impairments: lumbar spine 18 degenerative disc disease; cervical spine degenerative disc disease; right shoulder 19 degenerative joint disease; and bilateral carpal tunnel syndrome. Id. At step three, 20 the ALJ found Plaintiff did not have an impairment or combination of impairments ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1026 Page 7 of 19 1 that meets or medically equals the severity of a listed impairment. Tr. 33. The 2 ALJ then found Plaintiff had the RFC to perform sedentary work with the 3 following exceptions: 4 [Plaintiff] can never crawl or climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, and flights of stairs; occasionally reach overhead, but never lift over 5 pounds overhead bilaterally; frequently handle, finger, and feel objects bilaterally; avoid extreme cold, excessive vibration, and unprotected heights; and perform only simple, routine, unskilled tasks due to physical impairments. 5 6 7 8 9 Id. At step four, the ALJ found Plaintiff was not capable of performing any past 10 relevant work. Tr. 39. At step five, the ALJ found that, considering Plaintiff’s 11 age, education, work experience, and residual functional capacity, there were other 12 jobs that existed in significant numbers in the national economy that Plaintiff could 13 perform through the date last insured, such as call out operator, charge account 14 clerk, semi-conductor bonder, and surveillance system monitor. Tr. 40-41. The 15 ALJ concluded Plaintiff was not under a disability, as defined in the Social 16 Security Act, from August 22, 2016, the alleged onset date, through December 31, 17 2020, the date last insured. Tr. 41. 18 On April 7, 2022, the Appeals Council denied review, Tr. 1-5, making the 19 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 20 See 20 C.F.R. §§ 404.981, 422.210. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1027 Page 8 of 19 ISSUES 1 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 4 raises the following issues for this Court’s review: 5 6 7 8 9 10 11 1. Whether the ALJ failed to resolve apparent conflicts between the testimony of the vocational expert and the Dictionary of Occupational Titles (DOT); 2. Whether the ALJ failed to properly consider the restrictions on Plaintiff’s use of his hands and arms assessed at an independent medical examination; 3. Whether the ALJ failed to provide clear and convincing reasons for rejecting Plaintiff’s testimony concerning his ability to use his hands and arms; and 4. Whether the ALJ failed to properly consider statements from Plaintiff’s wife. 12 13 ECF No. 9 at 2. 14 DISCUSSION 15 A. Vocational Expert Testimony and Dictionary of Occupational Titles 16 Plaintiff contends the ALJ did not resolve the apparent conflicts between the 17 vocational expert’s testimony and the Dictionary of Occupational Titles as to Level 18 3 Reasoning and the ability to lift up to 10 pounds. 19 20 The Defendant acknowledges the apparent conflict between the functional capacity to perform simple, repetitive tasks and the demands of Level 3 Reasoning ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1028 Page 9 of 19 1 for the call out operator, charge account clerk, and surveillance system monitor and 2 concedes the ALJ made a mistake finding Plaintiff could perform these jobs 3 without getting vocational expert testimony to explain this apparent conflict. ECF 4 No. 10 at 11-12. However, the Defendant contends Plaintiff has not shown “harmful error.” 5 6 The ALJ and vocational expert identified another job Plaintiff could perform, 7 semi-conductor bonder. ECF No. 12-13. Plaintiff contends that sedentary work 8 necessarily involves lifting more than 5 pounds overhead so he is unable to work 9 as a semi-conductor bonder. However, there is nothing in the DOT that describes 10 the job duties of a semi-conductor bonder which requires overhead lifting. The 11 ALJ found Plaintiff could perform sedentary work “but never lift over 5 pounds 12 overhead bilaterally.” The ALJ asked the vocational expert whether Plaintiff 13 would be able to perform jobs when adding the additional limitation of occasional 14 handling, fingering and feeling objects with the right dominant hand. Tr. 41. The 15 vocational expert only testified that an individual would be able to perform the jobs 16 of call out operator and surveillance system monitor, not semi-conductor bonder. 17 Id. 18 19 Thus, given Defendant’s concessions as to the ALJ’s mistake, this matter must be remanded on this issue to resolve the conflicts. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 2:22-cv-00121-TOR 1 ECF No. 12 filed 12/27/22 PageID.1029 Page 10 of 19 B. Medical Opinion of Dr. Miner 2 Plaintiff contends that the ALJ’s conclusion conflicts with Dr. Miner’s 3 opinion and substantial evidence does not support rejecting her opinion. ECF No. 4 9 at 7-8. 5 As an initial matter, for claims filed on or after March 27, 2017, new 6 regulations apply that change the framework for how an ALJ must evaluate 7 medical opinion evidence. 20 C.F.R. § 416.920c(c); see also Revisions to Rules 8 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 9 5844-01 (Jan. 18, 2017). The ALJ applied the new regulations because Plaintiff 10 11 filed his Title II claim after March 27, 2017. Under the new regulations, the ALJ will no longer “give any specific 12 evidentiary weight … to any medical opinion(s).” Revisions to Rules, 2017 WL 13 168819, 82 Fed. Reg. 5844-01, 5867-68. Instead, an ALJ must consider and 14 evaluate the persuasiveness of all medical opinions or prior administrative medical 15 findings from medical sources. 20 C.F.R. § 416.920c(a)-(b). The factors for 16 evaluating the persuasiveness of medical opinions and prior administrative medical 17 findings include supportability, consistency, relationship with the claimant, 18 specialization, and “other factors that tend to support or contradict a medical 19 opinion or prior administrative medical finding” including but not limited to 20 “evidence showing a medical source has familiarity with the other evidence in the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1030 Page 11 of 19 1 claim or an understanding of our disability program’s policies and evidentiary 2 requirements.” 20 C.F.R. § 416.920c(c)(1)-(5). 3 The ALJ is required to explain how the most important factors, 4 supportability and consistency, were considered. 20 C.F.R. § 416.920c(b)(2). 5 These factors are explained as follows: 6 7 8 9 10 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 11 12 13 20 C.F.R. § 416.920c(c)(1)-(2). The ALJ may, but is not required to, explain how “the other most persuasive 14 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 15 § 416.920c(c)(b)(2). However, where two or more medical opinions or prior 16 administrative findings “about the same issue are both equally well-supported … 17 and consistent with the record … but are not exactly the same,” the ALJ is required 18 to explain how “the most persuasive factors” were considered. 20 C.F.R. 19 § 416.920c(c)(b)(2). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1031 Page 12 of 19 These regulations displace the Ninth Circuit’s standard that require an ALJ 1 2 to provide “specific and legitimate” reasons for rejecting an examining doctor’s 3 opinion. Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). As a result, the 4 ALJ’s decision for discrediting any medical opinion “must simply be supported by 5 substantial evidence.” Id. While the ALJ found Dr. Miner’s opinion to be partially persuasive, her 6 7 opinion was based on temporary restrictions and encroached on issues reserved for 8 the Commissioner. Tr. 38. Dr. Miner’s opinion only concerned temporary 9 restrictions but the ALJ was presented with evidence of disability that had already 10 lasted longer than 12 months. The ALJ did not address or resolve this apparent 11 issue. 12 13 14 15 16 Accordingly, this issue must be resolved on remand. C. Plaintiff’s Symptom Testimony Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit his symptom testimony. ECF No. 9 at 8-18. An ALJ engages in a two-step analysis to determine whether to discount a 17 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 18 1119029, at *2. “First, the ALJ must determine whether there is ‘objective 19 medical evidence of an underlying impairment which could reasonably be 20 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1032 Page 13 of 19 1 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 2 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 3 be expected to cause the severity of the symptom [the claimant] has alleged; [the 4 claimant] need only show that it could reasonably have caused some degree of the 5 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 6 1028, 1035-36 (9th Cir. 2007)). 7 Second, “[i]f the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of 9 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 10 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 11 omitted). General findings are insufficient; rather, the ALJ must identify what 12 symptom claims are being discounted and what evidence undermines these claims. 13 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 14 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 15 explain why he or she discounted claimant’s symptom claims). “The clear and 16 convincing [evidence] standard is the most demanding required in Social Security 17 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 18 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 19 20 Factors to be considered in evaluating the intensity, persistence, and limiting effects of a claimant’s symptoms include: (1) daily activities; (2) the location, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1033 Page 14 of 19 1 duration, frequency, and intensity of pain or other symptoms; (3) factors that 2 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 3 side effects of any medication an individual takes or has taken to alleviate pain or 4 other symptoms; (5) treatment, other than medication, an individual receives or has 5 received for relief of pain or other symptoms; (6) any measures other than 6 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 7 any other factors concerning an individual’s functional limitations and restrictions 8 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20 9 C.F.R. § 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 10 individual’s record,” “to determine how symptoms limit ability to perform work- 11 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 12 The ALJ found Plaintiff’s impairments could reasonably be expected to 13 cause the alleged symptoms; however, Plaintiff’s statements concerning the 14 intensity, persistence, and limiting effects of those symptoms were not entirely 15 consistent with the medical evidence and other evidence in the record. Tr. 34. 16 First the ALJ observed that Plaintiff testified to being very limited by pain 17 and other symptoms yet did not obtain treatment from August 2016 until January 18 2018. Tr. 34. Next, Plaintiff obtained shoulder surgery in April 2018 and reported 19 in May 2018 that his pain was resolving and his shoulder motion was “much 20 improved” although not normal. Tr. 35. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 2:22-cv-00121-TOR 1 ECF No. 12 filed 12/27/22 PageID.1034 Page 15 of 19 Next, the ALJ noted that it was “an interesting coincidence, the claimant was 2 also involved in a worker’s compensation lawsuit, with an examination related to 3 this in January 2019, where the examiner noted a history of left shoulder and lower 4 back problems, but “no medical evidence or data to support progression of 5 disability.” Id. Subsequent examinations demonstrated no significant 6 abnormalities or neurological compromise of the bilateral shoulders or lumbar 7 spine and despite Plaintiff’s complaint of constant pain and numbness in his hands, 8 examination in 2020 have shown good range of motion of the elbows, wrists and 9 hands. Id. 10 The ALJ recounted numerous other examinations that “document no 11 significant abnormality that would result in a more restrictive residual functional 12 capacity than outlined above; i.e., normal full range of motion of all joints, no focal 13 neurologic deficits, normal sensation, normal reflexes, normal attention span and 14 concentration. . .” Tr. 36. 15 The ALJ also recounted Plaintiff’s “reasonably high-functioning activities of 16 daily living during the period relevant to this adjudication are also not supportive 17 of his allegation of total disability under the Social Security Act. For example, he 18 has reported doing outdoor chores and activities, cooking, cleaning, shopping, and 19 driving; putting away logs in the woodshed although he complained of dropping 20 the logs due to his hand symptoms; able to perform all self-care, do cooking and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1035 Page 16 of 19 1 light housekeeping; taking care of the house by himself after his wife left for a job; 2 despite pacing himself, prepares meals, does lawn care, sweeps, does dishes, dusts, 3 general cleaning and repair, drives, shops, handles his own finances, reads, walks, 4 plays chess, goes hunting and fishing, walks his dog, does gaming online, rarely 5 spends time with others in person; plays chess and goes to BBQs, does some 6 cleaning at his own pace, sweeps a little bit, does some laundry, puts dishes in the 7 dishwasher but not pots and pans, paints or makes music to distract himself from 8 the pain, and described himself as a “computer guy” as opposed to being athletic. 9 Tr. 37 (internal citations omitted). 10 The ALJ concluded that “claimant’s allegations of debilitating limitations 11 (e.g., constant pain, unable to use arms or hands, needs help with personal hygiene) 12 are inconsistent with the claimant’s admitted activities and the objective medical 13 records. Notably, most exams show very little, if any, objective evidence of 14 abnormality. Most of the abnormal findings are subjective (e.g., subjectively 15 decreased sensation, subjective reports of painful range of motion, weakness due to 16 subjective pain, etc., and the imaging does not show evidence to support his 17 subjective complaints. Ultimately, although I accept the claimant’s allegations that 18 his symptoms limit his functional capacity to a mild-to moderate degree, his 19 allegations are not consistent with the record as a whole to the extent that his 20 capacity is so limited that he is unable to engage in substantial gainful activity ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 2:22-cv-00121-TOR 1 2 ECF No. 12 filed 12/27/22 PageID.1036 Page 17 of 19 consistent with the residual functional capacity outlined herein.” Tr. 37 An ALJ may not discredit a claimant’s symptom testimony and deny 3 benefits solely because the degree of the symptoms alleged is not supported by 4 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 5 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 6 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 7 2005). However, the objective medical evidence is a relevant factor, along with 8 the medical source’s information about the claimant’s pain or other symptoms, in 9 determining the severity of a claimant’s symptoms and their disabling effects. 10 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 11 The ALJ found that Plaintiff’s symptom allegations were inconsistent with 12 his daily activities. The ALJ may consider a claimant’s activities that undermine 13 reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a substantial 14 part of the day engaged in pursuits involving the performance of exertional or non- 15 exertional functions, the ALJ may find these activities inconsistent with the 16 reported disabling symptoms. Fair, 885 F.2d at 603; Molina v. Astrue, 674 F.3d 17 1104, 1113 (9th Cir. 2012). “While a claimant need not vegetate in a dark room in 18 order to be eligible for benefits, the ALJ may discredit a claimant’s testimony 19 when the claimant reports participation in everyday activities indicating capacities 20 that are transferable to a work setting” or when activities “contradict claims of a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 2:22-cv-00121-TOR 1 2 ECF No. 12 filed 12/27/22 PageID.1037 Page 18 of 19 totally debilitating impairment.” Molina, 674 F.3d at 1112-13. The Ninth Circuit has cautioned against reliance on “certain daily activities, 3 such as grocery shopping, driving a car, or limited walking for exercise” to 4 discount a plaintiff’s symptom allegations. Vertigan v. Halter, 260 F.3d 1044, 5 1050 (9th Cir. 2001). 6 Here, the ALJ lumped Plaintiff’s daily activities all together and found 7 Plaintiff could perform these activities without analyzing each statement and 8 observing that Plaintiff (and his wife) qualified each of his activities to such an 9 extent that they became meaningless. Plaintiff never claimed to have spent a 10 substantial part of his day performing these activities. Moreover, the ALJ did not 11 evaluate the pain Plaintiff complained of nor spent any time discussing its cause, 12 such as Lyme Disease or other causes. Plaintiff’s expressed limitations on his 13 activities completely discounted the heavy reliance the ALJ placed on them. 14 15 16 17 18 19 20 Accordingly, substantial evidence does not support the ALJ’s rejection of Plaintiff’s impairments and pain. This issue must be remanded for a full analysis. D. Statements of Plaintiff’s Wife Plaintiff contends the ALJ did not properly consider the Plaintiff’s wife’s letter describing her observations. ECF No. 9 at 18-20. The ALJ found these lay witness statements unpersuasive for the same reasons he found the claimant’s subjective complaints to be not fully consistent ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 2:22-cv-00121-TOR ECF No. 12 filed 12/27/22 PageID.1038 Page 19 of 19 1 with the objective medical evidence. Tr. 39. For the reasons stated above, this 2 issue must be reevaluated upon remand. CONCLUSION 3 4 Having reviewed the record and the ALJ’s findings, this Court concludes 5 that the ALJ’s decision is not supported by substantial evidence nor free of harmful 6 legal error. 7 ACCORDINGLY, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment (ECF No. 9) is GRANTED. 9 2. Defendant’s Motion for Summary Judgment (ECF No. 10) is DENIED. 10 3. This case is REVERSED and REMANDED pursuant to sentence four 11 of 42 U.S.C. § 405(g) for further administrative proceedings in 12 accordance with this Order. 13 4. Upon proper presentation, this Court will consider Plaintiff’s application 14 for costs, expenses, and reasonable attorney’s fees under the Equal 15 Access to Justice Act, 28 U.S.C. § 2412(a),(d). 16 17 18 The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to counsel, and close the file. DATED December 27, 2022. 19 20 THOMAS O. RICE United States District Judge ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19
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