Anderson v. Colvin, No. 4:2015cv05091 - Document 25 (E.D. Wash. 2016)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT granting in part and denying in part 17 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Anderson v. Colvin Doc. 25 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 MICHAEL ANDERSON, Plaintiff, 8 v. 9 10 11 CAROLYN COLVIN, Commissioner of Social Security, No.: 4:15-CV-5091-EFS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 13 Before the Court are cross motions for summary judgment. 14 15 ECF Nos. 17 & 23. Plaintiff Michael Anderson appeals the denial of 16 benefits by the Administrative Law Judge (ALJ). ECF No. 17. Mr. Anderson 17 contends the ALJ erred because she (1) accepted the opinion of the 18 medical expert, but did not discuss and accept all of his opinions; (2) 19 erred in evaluating the opinions of the treating physician; (3) erred in 20 determining that Mr. Anderson could perform past relevant work; and (4) 21 22 improperly discredited Mr. Anderson’s symptom testimony. ECF No. 17. The 23 Commissioner of Social Security (“Commissioner”) asks the Court to affirm 24 the ALJ’s decision that Mr. Anderson is capable of performing past 25 relevant work. ECF No. 23. After reviewing the record and relevant 26 authority, the Court is fully informed. For the reasons set forth below, 27 the Court remands for further proceedings. 28 / ORDER - 1 Dockets.Justia.com 1 A. Statement of Facts1 2 Mr. Anderson was born in 1971. Transcript of admin. hrg. (“Tr.”) 3 at 30. He completed high school and two years of college. Tr. at 30. Mr. 4 Anderson has been diagnosed with a number of physical conditions 5 including degenerative disc disease, narrow foramenal stenosis of the 6 neck, chronic neck and shoulder pain, congenital hypoplasia of the right 7 thumb, right wrist pain stemming from a previous right wrist fracture, 8 9 and right carpal tunnel syndrome. Tr. at 6–8, AR 301–559. Mr. Anderson 10 manages his pain using a variety of medications including Hydrocodone, 11 Flexeril (muscle relaxant), and Naproxyn (anti-inflammatory). Tr. at 20. 12 Mr. Anderson also uses a heating pad and massage wand daily for his neck 13 pain and attends physical therapy for his neck and wrist. Tr. at 16–17, 14 20. Mr. Anderson needs to lie down and take at least one nap daily to 15 relax his neck. Tr. at 21–22. 16 According to Mr. Anderson’s own testimony, he experiences 17 significant neck pain on a daily basis. Tr. at 18 (rating his average 18 daily pain at six or seven on a scale of ten). He notes that his neck 19 20 and shoulder muscles cramp when he stands for long periods of time and 21 lifting anything 22 explains that he has a limited range of motion in his neck and even 23 sitting 24 deformity and wrist pain, Mr. Anderson also struggles to pick up objects 25 with his right hand and has pain in his right wrist every day. Tr. at causes increases his neck to his pain. stiffen. Tr. Tr. at at 17. 19. Mr. Due Anderson to his also thumb 26 1 The facts are only briefly summarized. Detailed facts are 27 contained in the administrative hearing transcript, the ALJ’s decision, 28 the parties’ briefs, and the underlying records. ORDER - 2 1 15–17. Due to his pain, Mr. Anderson reports that he can no longer work 2 like he used to or engage in recreational activities, such as playing 3 basketball, with his children. Tr. at 18. He claims that he would only 4 be able to sit or stand at a job for 30 minutes before needing a break. 5 Tr. at 19. Mr. Anderson does note, however, that he sometimes goes to 6 the park with his daughter. Tr. at 21. In his Function Reports, Mr. 7 Anderson reported being able to shop occasionally, take the garbage out, 8 9 10 do laundry, socialize with family, read, and watch television. Administrative Record (AR) at 231–33. 11 Mr. Anderson has some employment history. Tr. at 58–61. He worked 12 retail at Costco from 1999 to 2005. AR at 253. Then, from 2005 to 2010, 13 Mr. Anderson worked in a variety of positions, including as a phone 14 operator, a construction laborer, a quality control worker at a food 15 production company, and a janitor at a retirement home. AR at 253–63; 16 Tr. at 58–61. Mr. Anderson reports encountering problems at his last job 17 as a food production assembly line worker because he requested too many 18 breaks. Tr. at 54. Mr. Anderson has not worked since November 2010. AR 19 20 21 at 253. B. Procedural History 22 On March 12, 2012, Mr. Anderson protectively filed for Disability 23 Insurance Benefits and Supplemental Insurance Benefits. AR at 170-185. 24 His alleged onset date is November 1, 2010. AR at 170, 177. On July 5, 25 2012, Mr. Anderson’s claim was denied. AR at 119–22. On October 24, 26 2012, reconsideration was denied. AR at 127–28. 27 On May 8, 2014, a hearing was held before ALJ Marie Palachuk. AR 28 36. Mr. Anderson; Anthony Francis, an independent medical expert; and K. ORDER - 3 1 Diane Kramer, an independent vocational expert, testified. AR at 36. The 2 ALJ determined that Mr. Anderson has the severe impairments of cervical 3 spine degenerative disc disease with resulting chronic pain, status post 4 right wrist fracture, and recent right-side carpal tunnel repair. AR at 5 23. The ALJ determined, however, that Mr. Anderson’s impairments do not 6 meet or medically equal the severity of any listed impairments. AR at 7 26. Despite his impairments, the ALJ also ultimately found that Mr. 8 9 Anderson has the residual functional capacity to perform light work, 10 except that he is further limited to (1) occasional lifting and carrying 11 of up to 20 pounds and frequent lifting and carrying of up to 10 pounds; 12 (2) standing and walking, with breaks, for only about six hours in an 13 eight-hour workday; (3) sitting, with normal breaks, for about six hours 14 in an eight-hour workday; (4) frequent climbing of ramps and stairs, 15 balancing, stooping, kneeling, crouching, and crawling; (5) occasional 16 climbing of ropes, ladders, or scaffolds; (6) occasional reaching 17 overhead bilaterally; (7) occasional right non-dominant hand fingering 18 and handling; and (8) avoiding concentrated exposure to temperature 19 20 extremes and hazardous situations. AR at 26. Based on this assessment, the testimony of the vocational expert, 21 22 and 23 concluded 24 production worker and survey worker, and is therefore not disabled as 25 defined by the Social Security Act. AR at 29. 26 Mr. Anderson’s Mr. age, Anderson education, can perform and past work experience, relevant work as the ALJ a food On May 27, 2014, the Appeals Council denied review of the ALJ’s 27 decision. AR at 1–3. Mr. Anderson then filed this lawsuit, appealing the 28 ORDER - 4 1 ALJ’s decision. ECF No. 3. Subsequently, the parties filed the instant 2 summary judgment motions. ECF Nos. 17 & 23. 3 C. Disability Determination 4 A “disability” is defined as the “inability to engage in any 5 substantial gainful activity by reason of any medically determinable 6 physical or mental impairment which can be expected to result in death 7 or which has lasted or can be expected to last for a continuous period 8 9 of not less than twelve 10 1382c(a)(3)(A). The 11 evaluation 12 months.” to maker U.S.C. determine uses whether a §§ 423(d)(1)(A), C.F.R. §§ 404.1520, 416.920. process decision 42 a five-step claimant is sequential disabled. 20 13 Step one assesses whether the claimant is engaged in substantial 14 gainful activities during the relevant period. If he is, benefits are 15 denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision 16 maker proceeds to step two. 17 Step two assesses whether the claimant has a medically severe 18 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 19 416.920(c). If the 21 combination of impairments, 22 impairment is severe, the evaluation proceeds to the third step. 20 claimant does the not have disability a severe claim is impairment denied. If or the 23 Step three compares the claimant’s impairment with a number of 24 listed impairments acknowledged by the Commissioner to be so severe as 25 to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 26 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of 27 the listed impairments, the claimant is conclusively presumed to be 28 ORDER - 5 1 disabled. If the impairment does not meet or equal one of the listed 2 impairments, the evaluation proceeds to the fourth step. 3 4 Step four assesses whether the impairment prevents the claimant from performing work he has performed in the past. This includes 5 determining the claimant’s residual functional capacity. 20 C.F.R. 6 §§ 404.1520(e), 416.920(e). If the claimant is able to perform his 7 previous work, he is not disabled. If the claimant cannot perform this 8 9 10 work, the evaluation proceeds to the fifth step. Step five, 15 during this in view claimant of sequential his can see Bowen v. Yuckert, 482 U.S. 137 (1987). shifts economy the 13 proof national whether education, and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); of the assesses 12 burden in step, perform The work final 11 14 other the age, disability analysis. The claimant has the initial burden of establishing a prima 16 facie case of entitlement to disability benefits. Rhinehart v. Finch, 17 438 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if he 18 establishes that a physical or mental impairment prevents him from 19 20 engaging in his previous occupation. The burden then shifts to the 21 Commissioner to show (1) the claimant can perform other substantial 22 gainful activity, and (2) a “significant number of jobs exist in the 23 national economy” that the claimant can perform. Kail v. Heckler, 722 24 F.2d 1496, 1498 (9th Cir. 1984). A claimant is disabled only if his 25 impairments are of such severity that he is not only unable to do his 26 previous work, but cannot — considering his age, education, and work 27 experience — engage in any other substantial gainful work that exists in 28 the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). ORDER - 6 1 D. Standard of Review 2 On review, a court considers the record as a whole, not just the 3 evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d 4 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 5 (9th Cir. 1980)). A court must uphold the ALJ’s determination that the 6 claimant is not disabled if the ALJ applied the proper legal standards 7 and there is substantial evidence in the record as a whole to support 8 9 the decision. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) 10 (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 11 839 F.2d 432, 433 (9th Cir. 1987) (recognizing that a decision supported 12 by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision). 14 Substantial 15 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less than a 16 preponderance, McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 17 1989); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 18 (9th Cir. 1988). “It means such relevant evidence as a reasonable mind 19 20 might accept as adequate to support a conclusion.” Richardson v. 21 Perales, 402 U.S. 389, 401 (1971) (citations omitted). Any inferences 22 and conclusions that the ALJ may reasonably draw from the evidence will 23 also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). A 24 court 25 interpretations exist. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 26 must 1984). 27 // 28 / ORDER - 7 uphold the ALJ’s decision, even if other rational 1 E. Analysis 2 3 The Court addresses each of Mr. Anderson’s challenges to the ALJ’s decision. 4 1. Medical Expert - Dr. Francis 5 Mr. Anderson contends that the ALJ erroneously failed to address 6 parts of Dr. Francis’s testimony, despite the ALJ’s acceptance of Dr. 7 Francis’s testimony in full. ECF No. 17 at 4–5. 8 The ALJ assigned “significant weight” to Dr. Francis’s opinions 9 10 because he had an opportunity to objectively review all of the medical 11 evidence 12 orthopedic surgeon, and his opinion was generally consistent with all 13 treating and examining opinions in the medical record. AR at 28. The ALJ 14 noted 15 in that the the record, only specialized opinion in the in the record relevant that area differed as an from Dr. Francis’s was that of Dr. Prakash, Mr. Anderson’s treating physician. 16 AR at 28. 17 As a general rule, the ALJ “need not discuss all evidence 18 presented to her,” but “she must explain why significant probative 19 20 evidence has been rejected.” Vincent v. Heckler, 739 F.2d 1393, 1394–95 21 (9th Cir. 1984) (internal quotation marks omitted). When the ALJ accepts 22 portions of a medical opinion, but rejects other portions, she must 23 provide an explanation for the variable treatment. Craig v. Astrue, 269 24 F. App’x 710, 712 (9th Cir. 2008) (rejecting the ALJ’s credibility 25 determination 26 medical] in opinion part was because “the persuasive in ALJ offered no one regard, reason but not why the [the other” 27 (citing Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004)); 28 Switzer ORDER - 8 v. Heckler, 742 F.2d 382, 385–86 (7th Cir. 1984) (“[T]he 1 Secretary’s attempt to use only the portions [of a report] favorable to 2 her position, while ignoring other parts, is improper.”). “The ALJ is 3 not entitled to pick and choose from a medical opinion, using only those 4 parts that are favorable to a finding of nondisability.” Robinson, 366 5 F.3d at 1083. 6 Mr. Anderson argues that the ALJ improperly failed to consider 7 portions of Dr. Francis’s opinions, despite giving significant weight to 8 9 his testimony and opinion as a whole. ECF No. 17 at 10–11. Specifically, 10 Dr. Francis testified on cross-examination that he did not disagree with 11 another professional’s opinion in the record that Mr. Anderson may need 12 to miss up to three days of work per month and would need to lie down 13 occasionally during the day due to pain. Tr. at 14. When asked about the 14 opinion, Dr. Francis stated: 15 17 “I mean that can be reasonable. I mean we’re looking at a document that’s almost a year old now. That apparently was that doctor’s opinion. I don’t have any reason to disagree with it though at that time.” 18 Tr. at 14. This statement alone may not carry significant force due to 19 its equivocal nature, but the findings regarding Mr. Anderson’s need to 16 20 miss work and need to lie down were essential to the vocational expert’s 21 determination that Mr. Anderson could perform past relevant work. Tr. at 22 31–32. When questioned about whether an individual with Mr. Anderson’s 23 impairments could maintain employment if he needed to miss two or more 24 25 26 27 days of work per month, the vocational expert indicated that such a person could not sustain competitive employment: Claimant’s Attorney: 28 ORDER - 9 Ms. Kramer, if an individual were to miss work, due to their impairments, how many days could they miss per month and still be able to sustain competitive employment? 1 2 Vocational Expert: And if it’s two or more per month, then they’re most likely not going to be able to sustain competitive employment? Vocational Expert: 4 Usual and customary is up to one per month within unskilled labor. Claimant’s Attorney: 3 Correct. 5 6 7 Tr. at 31. The vocational expert further indicated that lying down during 8 9 the workday would not be tolerated in a work environment. Tr. at 32. 10 Because Dr. Francis’s statement regarding Mr. Anderson’s need to 11 miss work and lie down throughout the day, in combination with the 12 vocational expert’s testimony, was significant probative evidence of Mr. 13 Anderson’s 14 Anderson’s disability, the ALJ was required to provide a reason for 15 rejecting inability that to portion maintain of Dr. employment Francis’s and, thereby, testimony. The of ALJ Mr. gave 16 significant weight to Dr. Francis’s testimony and opinion generally. AR 17 at 28. Thus, without refuting — or at least acknowledging — Dr. Francis’s 18 statement that it was possible Mr. Anderson would need to miss work and 19 20 lie down throughout the day, there was no substantial evidence for the 21 ALJ to reasonably conclude that Mr. Anderson was able to maintain 22 employment, and the ALJ’s findings indicate she may have engaged in 23 impermissible cherry-picking. See Craig, 269 F. App’x at 712. 24 Therefore, the Court remands the case back to the ALJ to determine 25 whether Mr. Anderson would need to miss work more than one day a month 26 or lie down throughout the day due to his impairments and, if so, 27 whether Mr. Anderson is disabled. 28 ORDER - 10 1 2. 2 Mr. Anderson contends that the ALJ failed to properly consider the 3 Treating Physician Dr. Prakash opinion of his treating physician, Dr. Prakash. ECF No. 17 at 12–13. 4 The ALJ assigned “some weight” to Dr. Prakash’s opinions because 5 he was a treating source and his opinion was consistent with other 6 opinions that Mr. Anderson could work at light levels, but had some 7 right hand limitations. AR at 28. The ALJ noted that Dr. Prakash’s 8 9 opinion indicated Mr. Anderson could only lift and carry two pounds with 10 his right upper extremity, but could carry 20 pounds with his left upper 11 extremity and that Mr. Anderson could stand for six hours in an eight- 12 hour workday. AR at 28. 13 There are three type of physicians: treating physicians, examining 14 physicians, and nonexamining physicians. Lester v. Chater, 81 F.3d 821, 15 830 (9th Cir. 1995). “As a general rule, more weight should be given to 16 the opinion of a treating source than to the opinion of doctors who do 17 not treat the claimant.” Id. The ALJ must provide “clear and convincing” 18 reasons for rejecting a treating or examining physician’s opinions and 19 20 may not reject such opinions without providing “specific and legitimate 21 reasons” supported by substantial evidence in the record for so doing. 22 Id. 23 Mr. Anderson argues that the ALJ improperly failed to credit the 24 opinion of Dr. Prakash without meeting the standard required in Lester 25 when the ALJ did not expressly find that Mr. Anderson could only lift two 26 pounds with his right hand. ECF No. 17 at 12–13. As the petitioner notes, 27 however, the ALJ did not reject Dr. Prakash’s opinion. ECF No. 17 at 12– 28 13. In fact, it is not clear that the ALJ’s findings are inconsistent ORDER - 11 1 with Dr. Prakash’s opinion. AR at 26. The ALJ found that Mr. Anderson 2 could lift 20 pounds occasionally and 10 pounds frequently, but did not 3 distinguish between Mr. Anderson’s use of his right and left hands. AR at 4 26. 5 Mr. Anderson contends that the ALJ’s failure to distinguish between 6 the functioning of Mr. Anderson’s hands was problematic because the ALJ’s 7 hypothetical given to the vocational expert did not differentiate between 8 9 Mr. Anderson’s ability to lift with each hand. It is true that “the 10 hypothetical posed must include ‘all of the claimant’s functional 11 limitations, both physical and mental’ supported by the record.” Thomas 12 v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). Although the hypothetical 13 did not distinguish between Mr. Anderson’s ability to lift with each 14 hand, the ALJ accounted for the different functioning levels of Mr. 15 Anderson’s hands by including limitations on Mr. Anderson’s ability to 16 handle and finger with the right hand. Tr. at 30–31. 17 Accordingly, the Court finds that the ALJ did not err with respect 18 to her consideration of Dr. Prakash’s opinion and that the ALJ’s 19 20 21 hypothetical given to the vocational expert adequately described Mr. Anderson’s impairments. 22 3. Past Relevant Work Analysis 23 Mr. Anderson also contends that in addition to the stage four 24 errors 25 committed factual and legal errors in evaluating whether Mr. Anderson 26 in the ALJ’s analysis outlined above in Section 1, the ALJ had past relevant work to which he could return. ECF No. 17 at 14–17. 27 Mr. Anderson claims that the two jobs identified by the vocational 28 expert as jobs to which Mr. Anderson could return — food production ORDER - 12 1 worker and survey worker — are not qualifying past relevant work because 2 they were not performed at “substantial gainful activity levels.” ECF 3 No. 17 at 14. 4 In order for a position to qualify as substantial gainful activity 5 in 2009 and 2010 — the years Mr. Anderson was working as a food 6 production worker or survey worker — an individual had to earn $980 per 7 month and $1000 per month, respectively, in that position. Social 8 9 Security Administration, Program Operations Manual Systems, Tbl. DI 10 10501.015. To assess whether a position constitutes substantial gainful 11 activity, the Social Security Administration Operations Manual notes 12 that in calculating gross earning, it is essential to: “Develop enough 13 evidence to determine the actual period worked and the earnings for that 14 period.” 15 Social Security Administration, Program Operations Manual Systems, DI 10505.001(B)(1). 16 Mr. Anderson argues that he did not earn enough as a food 17 production worker or survey worker to meet the earning requirement for 18 substantial gainful activity. ECF No. 17 at 14–17. The Commissioner 19 20 seems to concede that Mr. Anderson’s former position as a survey worker 21 did not qualify as substantial gainful activity. ECF No. 23 at 11–13. 22 The Commissioner contests, however, whether the food production worker 23 position qualifies. ECF No. 23 at 11–13. 24 25 26 The record contains conflicting reports about how long Mr. Anderson worked as a food production worker. Mr. Anderson worked in that position as part of his employment with a temp agency, Manpower 27 International Inc. According to Mr. Anderson’s work history report, he 28 worked at the temp agency from June 2008 through September 2010. AR 253. ORDER - 13 1 In another filing, Mr. Anderson noted that during his time with the temp 2 agency he worked “mostly at Lamb Weston quality control packaging hash 3 browns” but also worked other jobs. AR 255. In his testimony before the 4 ALJ, Mr. Anderson indicated that he worked at Lamb Weston for only 90 5 days total. Tr. at 59. Mr. Anderson’s earning statements from Manpower 6 International do not distinguish between different job placements and 7 include only a total for each year of employment with the agency. AR 8 9 190-92. 10 When calculating his average monthly earnings while working at 11 Lamb Weston, Mr. Anderson divided the total amount earned at Manpower 12 for 13 International 14 determined that he earned $213.16 per month in 2009 and $207.50 per 15 each year by that the number year. of Using months such a he worked for Manpower calculation, Mr. Anderson month in 2010. ECF No. 17 at 16. The Commissioner used a different 16 calculation, dividing the total amount Mr. Anderson earned at Manpower 17 International from 2009 and 2010 by the three months Mr. Anderson 18 testified that he worked at Lamb Weston. ECF No. 23 at 12. Using this 19 20 21 calculation, the Commissioner determined that Mr. Anderson earned $1,475 per month during his time at Lamb Weston. ECF No. 23 at 12. 22 Both of these methods of calculation are flawed. Without knowing 23 which time periods Mr. Anderson spent working at Lamb Weston, rather 24 than at Manpower International generally, it is impossible to determine 25 the amount of his Manpower International earnings that are attributable 26 to his work at Lamb Weston. Moreover, as demonstrated by the significant 27 discrepancy between Mr. Anderson’s calculation and the Commissioner’s 28 calculation, it is impossible to determine how much Mr. Anderson earned ORDER - 14 1 per month during his time at Lamb Weston without evidence of how long 2 Mr. 3 incomplete evidence in the record, it is impossible to determine whether 4 Mr. Anderson Anderson’s actually position worked as a there. food With the production contradicting worker and qualified as 5 substantial gainful activity. 6 Therefore, the Court remands the case back to the ALJ to determine 7 how long Mr. Anderson worked at Lamb Weston and how much he earned 8 9 during that time. Then, the ALJ shall determine whether Mr. Anderson’s 10 position as a food production worker qualified as substantial gainful 11 activity. 12 4. Mr. Anderson’s Testimony 13 Mr. Anderson argues the ALJ’s credibility assessment is legally 14 15 insufficient because when the ALJ determined that Mr. Anderson was not fully credible, she did not demonstrate that the medical evidence was 16 inconsistent with Mr. Anderson’s testimony or that Mr. Anderson’s 17 activities were inconsistent with his claims. 18 A two-step analysis is used by the ALJ to assess whether a 19 20 claimant’s testimony regarding subjective pain or symptoms is credible. 21 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Step one requires 22 the ALJ to determine whether the claimant presented objective medical 23 evidence of an impairment that could reasonably be expected to produce 24 some degree of the pain or other symptoms alleged. Lingenfelter v. 25 Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 26 1273, 1282 (9th Cir. 1996). Objective medical evidence of pain or 27 fatigue, or the severity thereof, need not be provided by the claimant. 28 Garrison, 759 F.3d at 1014. ORDER - 15 1 If the claimant satisfies the first step of this analysis, and 2 there is no evidence of malingering, the ALJ must accept the claimant’s 3 testimony about the severity of his symptoms unless the ALJ provides 4 specific, clear, and convincing reasons for rejecting the claimant’s 5 testimony. Id. An ALJ is not “required to believe every allegation of 6 disabling pain” or other non-exertional impairment. Orn v. Astrue, 495 7 F.3d 625, 635 (9th Cir. 2007). To discredit a claimant’s testimony when a 8 9 medical impairment has been established, however, the ALJ must provide 10 specific, cogent reasons for the disbelief. Id. Factors that an ALJ may 11 consider in weighing a claimant’s credibility include reputation for 12 truthfulness, inconsistencies in testimony or between testimony and 13 conduct, daily activities, and unexplained, or inadequately explained, 14 failure to seek treatment or follow a prescribed course of treatment. Id. 15 Here, the ALJ found that Mr. Anderson did suffer from severe 16 musculoskeletal impairments and recognized that his impairments could 17 cause the alleged symptoms. AR at 26–27. She then determined, however, 18 that Mr. Anderson’s statements concerning the intensity, persistence, and 19 20 effects of his symptoms were not fully credible. AR at 27. The ALJ 21 explained that the medical opinions did not support the level of 22 limitation alleged by Mr. Anderson because the opinions supported an 23 ability to perform light work. AR at 27. In addition, the ALJ concluded 24 that Mr. Anderson’s reported activities of daily living did not support 25 the level of limitation claimed because Mr. Anderson “cares for his 26 children and accompanies his daughter on outings to the park,” and he 27 submitted Function Reports indicating that he could “cook simple meals, 28 ORDER - 16 1 shop, do laundry, socialize, read, and likes to watch sports related 2 television.” AR at 27. 3 4 The explanation provided by the ALJ for rejecting Mr. Anderson’s testimony does not include the kind of “clear, convincing, and specific 5 reason[s]” required to discredit a social security claimant. Garrison, 6 759 F.3d at 1016. The ALJ did not explain how Mr. Anderson’s claims 7 differed from the level of functioning described by the medical opinions, 8 9 stating only “claimant’s subjective complaints are partially credible 10 because medical opinions addressed above do not support the level of 11 limitations alleged.” The ALJ noted an inconsistency with the physical 12 therapist’s opinion that Mr. Anderson could perform light to medium work, 13 AR at 27, but subsequently noted that she was giving the physical 14 therapist’s opinion “little weight.” AR at 28. The ALJ also cited to 15 opinions by Dr. Francis and Dr. Valencia that Mr. Anderson could perform 16 light work as evidence of inconsistency, AR at 27, but the ALJ later 17 noted that she only gave Dr. Valencia’s opinion “some weight” because it 18 was “silent as to any residual right hand limitations which discounts its 19 20 probative value in this case.” AR at 28. Accordingly, if Mr. Anderson’s 21 alleged severity of symptoms was inconsistent with the opinions of the 22 physical therapist and Dr. Valencia, given the low weight attributed to 23 each expert’s opinion it is unclear that such an inconsistency is 24 sufficient to discredit Mr. Anderson. 25 26 Although the ALJ gave Dr. Francis’s opinion significant weight, it is important to note that Dr. Francis did not unequivocally state that a 27 light level of work was appropriate. Dr. Francis stated: “Most RFCs 28 [residual functional capacities] in a chronic pain case are going to fall ORDER - 17 1 either light, sedentary or less than sedentary.” Tr. at 8. Dr. Francis 2 concluded that “probably a light RFC would be appropriate here, but I’m 3 willing to discuss it.” Tr. at 9. It is therefore unclear whether there 4 is a meaningful inconsistency between Dr. Francis’s opinion and Mr. 5 Anderson’s testimony so as to justify discrediting Mr. Anderson. 6 It is also unclear that Mr. Anderson’s described daily activities 7 are inconsistent with the level of impairment alleged. While the ALJ 8 9 stated that Mr. Anderson could “cook simple meals,” Mr. Anderson 10 specifically noted in his Function Report that he did not cook at all, 11 stating: “[I]t is painful to stand over the stove for a long period of 12 time, so my mother prepares all the meals.” AR at 231. There is no 13 contradictory evidence in the record to suggest that Mr. Anderson cooks. 14 In addition, the ALJ noted that Mr. Anderson cares for his children, but 15 there is no indication in the record that Mr. Anderson performs childcare 16 activities. Mr. Anderson indicated that he lives alone and does not 17 reside with his children. AR at 178. In his Function Report, Mr. Anderson 18 reported that he does not care for any children. AR at 230. Mr. Anderson 19 20 21 22 testified that he is no longer able to play with his sons, but did not say anything regarding care of his children. Tr. at 18. Mr. Anderson did indicate in his testimony that he walks with his 23 daughter to the park occasionally, Tr. at 21, but that is not 24 inconsistent with his Function Report statement that he can walk about a 25 half of a mile before resting and then only needs to rest for five 26 minutes. AR at 234. Mr. Anderson also indicated in his Function Reports 27 that he could take the garbage out and does laundry, but that it “takes 28 [him] a little longer than it use to” and he only performs those ORDER - 18 1 activities about twice a week. AR at 231. Mr. Anderson indicated the he 2 does not do any other housework “like dishes or yardwork” because 3 “standing and movement in neck is too painful to do for an extended 4 period.” AR at 232. Mr. Anderson also indicated that he shops, but only 5 once a month for about an hour. AR at 232. Although Mr. Anderson also 6 indicated that he likes to read and watch sports on television, he also 7 noted that he has to take breaks from those activities in order to “give 8 9 [his] neck a rest from being in one position.” AR at 233. Mr. Anderson 10 also testified that he needs to nap at least once a day and massage his 11 neck throughout the day in order to relax his neck muscles. Tr. at 21–22. 12 It is important to recognize that “many home activities may not be 13 easily transferable to a work environment where it might be impossible to 14 rest periodically or take medication.” Smolen, 80 F.3d at 1284 n.7; see 15 also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home 16 activities are not easily transferable to what may be the more grueling 17 environment of the workplace[.]”). “[I]mpairments that would 18 unquestionably preclude work and all the pressures of a workplace 19 20 environment will often be consistent with doing more than merely resting 21 in bed all day.” Garrison, 759 F.3d at 1016. Accordingly, the ability to 22 perform some tasks that are consistent with tasks performed at a job does 23 not necessarily mean that an individual is able to perform those tasks on 24 a consistent basis in a work environment. 25 26 In this case, Mr. Anderson’s described activities — doing laundry twice a week, taking out the trash twice a week, shopping once a month, 27 reading and watching television with periodic breaks, and occasionally 28 taking his daughter to the park — do not necessarily demonstrate an ORDER - 19 1 ability to work eight hours a day in a work environment. As discussed 2 above in Section 1, Mr. Anderson would not be able to take frequent 3 breaks or naps at work. His ability to perform tasks twice a week is not 4 evidence of an ability to perform similar tasks repeatedly throughout the 5 day. The Commissioner claims that Mr. Anderson’s testimony regarding 6 difficulty using his right hand is inconsistent with doing laundry, ECF 7 No. 23, at 7, but there is no evidence that Mr. Anderson uses his right 8 9 hand when doing laundry. The Commissioner also argues that Mr. Anderson’s 10 ability to accompany his daughter to the park is inconsistent with his 11 claim that he has difficulty sitting or standing for more than 30 12 minutes, ECF No. 23, at 7, but there is no evidence that Mr. Anderson 13 must sit or stand for more than 30 minutes without a break during such 14 outings. Accordingly, the evidence clearly indicates that Mr. Anderson’s 15 described daily activities are consistent with the severity of the 16 symptoms alleged. 17 Therefore, the Court remands the case back to the ALJ to make 18 specific findings as to whether Mr. Anderson’s alleged impairment is 19 20 inconsistent with medical opinions to which the ALJ has given weight and 21 then consider whether Mr. Anderson is disabled, giving appropriate credit 22 to Mr. Anderson’s testimony. 23 C. 24 25 26 Conclusion For the above-given reasons, the Court remands the case for further proceedings. Although the Court holds that the ALJ erred, it is not clear from the record, as it currently stands, whether Mr. Anderson 27 is disabled or whether he has qualifying past relevant work to which he 28 could return. The ALJ shall consider Dr. Francis’s statement regarding ORDER - 20 1 Mr. Anderson’s possible need to lie down during the work day or miss 2 work 3 Anderson’s position as a food production worker met the standard for 4 due to pain. In addition, the ALJ shall consider whether Mr. substantial gainful activity. The Commissioner has conceded that Mr. 5 Anderson’s position as survey worker did not meet that standard, so an 6 additional consideration of that position is unnecessary. The ALJ shall 7 also reevaluate Mr. Anderson’s credibility given the Court’s 8 9 10 determination that Mr. Anderson’s daily activities are not inconsistent with the level of impairment alleged. 11 The Court holds that the ALJ did not fail to properly consider Dr. 12 Prakash’s opinion. Therefore, the ALJ does not need to reevaluate or 13 reweigh that opinion. 14 //// 15 //// 16 //// 17 //// 18 //// 19 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 /// 27 // 28 / ORDER - 21 1 Accordingly, IT IS HEREBY ORDERED: 2 1. 3 4 Mr. Anderson’s Motion for Summary Judgment, ECF No. 17, is GRANTED IN PART and DENIED IN PART. 2. The Commissioner’s Motion for Summary Judgment, ECF No. 23, 5 is DENIED. 6 3. This matter is REMANDED to the Commissioner for additional 7 proceedings consistent with this Order. 8 9 4. Anderson. 10 11 The Clerk’s Office is to enter Judgment in favor of Mr. 5. An application for attorney fees may be filed by separate motion by Mr. Anderson. 12 13 6. 14 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 15 The case shall be CLOSED. Order and provide copies to counsel and ALJ Marie Palachuk. 16 DATED this 27th day of September 2016. 17 18 _______s/Edward F. Shea____ EDWARD F. SHEA Senior United States District Judge 19 20 21 22 23 24 25 26 27 28 Q:\EFS\Civil\2015\5091.ord.grant.p.sj.lc02.docx ORDER - 22
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