Diana Pitts v. Nancy A. Berryhill, No. 5:18-cv-01617 (C.D. Cal. Aug. 16, 2019). · Go Syfert
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Diana Pitts
v.
Nancy A. Berryhill
5:18-cv-01617.
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District Court, C.D. California.
Aug 16, 2019.
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION
DIANA PITTS,Plaintiff,v.ANDREW M. SAUL, Commissionerof the Social SecurityAdministration,1Defendant.
Case No. EDCV 18-01617-ASMEMORANDUM OPINION ANDORDER OF REMAND

20 For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to 21 Sentence Four of 42 U.S.C. § 405(g), this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 25 26 27 28 1 Andrew M. Saul is now the Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Nancy A. Berryhill in this case. See Fed.R.Civ.P. 25(d). 1 PROCEEDINGS 2 3 On August 2, 2018, Plaintiff filed a Complaint seeking review of 4 the denial of her application for Disability Insurance Benefits and 5 Supplemental Security Income. (Docket Entry No. 1). The parties have 6 consented to proceed before the undersigned United States Magistrate 7 Judge. (Docket Entry Nos. 11-12). On December 13, 2018, Defendant 8 filed an Answer along with the Administrative Record (“AR”). (Docket 9 Entry Nos. 15-16). On June 13, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting forth their respective positions regarding Plaintiff’s claims. (Docket Entry No. 25).

The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On January 5, 2015, Plaintiff, formerly employed as a salesperson, cashier, stock clerk, driver and dispatcher (see AR 41, 54-58, 288-91), filed an application for Disability Insurance Benefits, alleging an inability to work because of a disabling condition since August 10,

2010. (See AR 203-04). On January 9, 2015, Plaintiff filed an 24 application for Supplemental Security Income, alleging a disability 25 since August 10, 2010. (See AR 205-10). The Commissioner denied 26 Plaintiff’s applications, initially and on reconsideration. (AR 119-27, 27 131-40). On June 27, 2017, the Administrative Law Judge (“ALJ”), 28 Katherine Loo, heard testimony from Plaintiff (represented by counsel) 1 and an impartial vocational expert, Mary Jesko. (See AR 33-62). 2 3 On August 28, 2017, the ALJ issued a decision denying Plaintiff’s 4 applications. (See AR 15-23). Applying the five-step sequential 5 process, the ALJ found at step one that Plaintiff has not engaged in 6 substantial gainful activity since August 10, 2010, her alleged onset 7 date, through June 30, 2014, her date last insured. (AR 17). At step 8 two, the ALJ found that through the date last insured, Plaintiff had the 9 following severe impairments: “obesity, history of atelectasis, degenerative changes of the spine, hepatomegaly with fatty infiltration of the liver, folliculitis, early arthritis of the left knee, major depressive disorder, and substance abuse” (AR 18). At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of any of the listings enumerated in the regulations.[2] (AR 18).

The ALJ then assessed Plaintiff’s residual functional capacity (“RFC”)3 and concluded that she had the capacity to perform medium work4 with the following limitations: can frequently reach, handle, finger and 21 feel; can occasionally climb ramps and stairs, stoop, kneel, crouch, 22 23 2 The ALJ considered whether Plaintiff met the criteria of 24 Listings 1.02, 1.04, 1.05, and 12.04, and concluded that she did not. (AR 18).

25 3 A Residual Functional Capacity is what a claimant can still do 26 despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 27 4 “Medium work involves lifting no more than 50 pounds at a time 28 with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). 1 crawl and interact with supervisors, coworkers and the public; can never 2 climb ladders or scaffolds or work around hazards such as unprotected 3 heights and moving machinery; can perform only simple, routine tasks; 4 and must avoid concentrated exposure to respiratory irritants. (AR 19- 5 22).

At step four, the ALJ found that Plaintiff was not able to perform any past relevant work (AR 22). Based on Plaintiff’s RFC, age, education, work experience and the VE’s testimony, the ALJ determined, at step five, that through the date last insured, Plaintiff could perform jobs existing in significant numbers in the national economy. (AR 22-23). Accordingly, the ALJ found that Plaintiff was not under a disability as defined in the Social Security Act, from August 10, 2010, the alleged onset date, through the date of the decision. (AR 23).

The Appeals Council denied Plaintiff’s request for review on June 18 22, 2018. (See AR 1-5). Plaintiff now seeks judicial review of the 19 ALJ’s decision, which stands as the final decision of the Commissioner. 20 See 42 U.S.C. §§ 405(g), 1383(c). 21 22 STANDARD OF REVIEW 23 24 This Court reviews the Commissioner’s decision to determine if it 25 is free of legal error and supported by substantial evidence. See 26 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 27 evidence” is more than a mere scintilla, but less than a preponderance. 28 1 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 2 whether substantial evidence supports a finding, “a court must consider 3 the record as a whole, weighing both evidence that supports and evidence 4 that detracts from the [Commissioner’s] conclusion.” Aukland v. 5 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation 6 omitted). As a result, “[i]f the evidence can support either affirming 7 or reversing the ALJ’s conclusion, [a court] may not substitute [its] 8 judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 9 880, 882 (9th Cir. 2006).5

10 11

PLAINTIFF’S CONTENTIONS

12 13

Plaintiff alleges that the ALJ erred in failing to properly: (1) 14 properly develop the medical record, and properly consider the medical 15 evidence of record in assessing Plaintiff’s RFC; and (2) consider 16 Plaintiff’s testimony in assessing Plaintiff’s RFC. (See Joint Stip. 17 at 3-9, 11-17).

18 19

DISCUSSION

20 21

After consideration of the record as a whole, the Court finds that 22 Plaintiff’s second claim of error warrants a remand for further 23 consideration. Since the Court is remanding the matter based on 24 Plaintiff’s second claim of error, the Court will not address 25 26 5 The harmless error rule applies to the review of 27 administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless).

1 Plaintiff’s first claim of error.

A. The ALJ Did Not Properly Assess Plaintiff’s Testimony

Plaintiff asserts that the ALJ did not provide clear and convincing reasons for rejecting Plaintiff’s testimony about her symptoms and limitations. (See Joint Stip. at 11-17). Defendant asserts that the ALJ properly discounted Plaintiff’s testimony, and alternatively contends that any error in discounting Plaintiff’s testimony was harmless. (See Joint Stip. at 17-19).

1 She cannot pay attention on bad days; she can pay attention 2 for about one hour on good days. When she is following hard written instructions, she wants to quit. Sometimes (when 3 stressed) she gets confused following spoken instructions.

She gets along okay with authority figures. She has never been fired or laid off from a job because of problems getting 4 along with other people. She is not able to handle stress well (she does not want to be with people), but she is able 5 to handle changes in routine okay. Her unusual behavior or fear is fear of dying. She uses prescription glasses (last 6 prescribed in 2014). She takes Trazodone, which causes her to suffer dry mouth and gain weight. (See AR 306-07). 7 8 Plaintiff gave the following testimony at the administrative hearing 9 (see AR 37-58):

10 11

She is 53 years old. She went to school until the 9th grade, and obtained her GED in 1989. Since March 2013 she 12 has lived in her friend’s deceased mother’s house which is behind her friend’s house. She helped take care of her 13 friend’s wife (keeping her company, making meals, feeding, administering medication, calling hospice) from October 2012 14 through May 2013 (when her friend’s wife died); she started living at her friend’s deceased mother’s house in March 2013. 15 She helped take care of her friend’s mother (doing the same tasks) until December 2014 (when her friend’s mother died). 16 She helped take care of the two women in exchange for room and board starting in March 2013. She cleaned her friend’s 17 house (two times a month) in exchange for room and board until October 2016, at which time she was no longer able to 18 do the cleaning. She currently gets food stamps and “medical.” Her friend drove her to the hearing. (See AR 37- 19 41).

20 She worked at Walmart for five years, as a cashier (for two years), then in the ladies wear department, the infant 21 department, as an overnight stocker, and in the cosmetics department. She went on medical leave because of a swollen 22 left ankle; a cardiologist did an ultrasound and found a blood clot, and put her on blood thinners and a special diet. 23 She returned to work after a vascular surgeon said the blood clot was gone. She worked until August 2010. She knew she 24 was going to be let go after she failed to show up for work for three days because of an incident (about which she felt 25 bad) in which she asked a cashier about the cashier’s baby (who had died). She applied for other jobs and did not get 26 hired, which caused her to get more and more depressed and to start isolating herself. (See AR 41-43, 54-56). 27 28 1 From 1997 to 2004, she worked as a driver and later as 2 a dispatcher for a railroad. (See AR 56-58). 3 She is not able to work because of her knees (osteoarthritis), her weight, depression, anxiety, high 4 cholesterol, Type 2 diabetes, and mitrovalve regurgitation.

In May 2016, she saw an orthopedic surgeon and then waited 5 for seven months to get surgery on her left knee (which did not happen on December 15, 2016 because she was sick). In 6 May 2017, she began to see another orthopedist, who does not want to do surgery. She has received one injection in her 7 left knee (June 2017), and she is going to receive an injection in her right knee (July 2017). The injection in 8 her left knee helped for one day; her knees are still bubbled and she still has sharp pains. She has been prescribed, and 9 is, taking a new pain medication. (See AR 43-49). 10 For almost five years she has seen a clinical therapist and a psychologist for depression and anxiety, and she takes 11 extra classes (such as a class on mindfulness). She sees her psychologist for therapy every 4 to 6 weeks, sees a clinical 12 therapist every other week, and sees another mental health professional every 14 weeks. She takes her psychiatric 13 medications faithfully; the one time she stopped taking her medications for three days she did not want to do anything. 14 Therapy and medication keep her stable. However, most of the time, she is depressed. (See AR 47-48, 50). 15 She has a history of acute bronchitis, but she does not 16 have asthma. She has to use an inhaler twice a day. This past year, she went to the emergency room once due to 17 shortness of breath, and in the past she has had to go to the emergency room a lot due to shortness of breath. She does 18 not take insulin for her diabetes; she only has had to change her diet. She has not yet seen a cardiologist for the 19 mitroal valve regurgitation. (See AR 49-50). 20 With respect to her daily activities, she can shower and 21 take care of herself. She eats microwavable food. She mostly stays in her pajamas because of her depression. She 22 can walk one block without a cane; with a cane she can walk one more block after resting for 2 to 3 minutes. With or 23 without a cane, she is able to walk while carrying a little purse weighing about 5 pounds. After walking that second 24 block, she goes home, goes into her room, turns on the television, and gets into bed. She can stand for about 15 25 minutes without a cane, and then has to lie down. She has difficulty sitting because of her knees. She cannot bend. 26 (See AR 49-53).

27 She does not smoke, she drinks one beer a week, and she does not use illegal drugs. She took methamphetamine for 28 about four years, and has been clean for more than one year (with only one relapse). (See AR 50-51). 1 After summarizing Plaintiff’s testimony (see AR 19-20)7 and 2 Plaintiff’s friend’s testimony (see AR 20), the ALJ wrote: “After 3 careful consideration of the evidence, the undersigned finds that the 4 claimant’s medically determinable impairments could reasonably be 5 expected to cause the alleged symptoms; however, the claimant’s 6 statements concerning the intensity, persistence and limiting effects 7 of these symptoms are not entirely consistent with the medical evidence 8 and other evidence in the record for the reasons explained in this 9 decision.” (AR 20). Following a discussion about the evidence of 10 Plaintiff’s psychiatric impairments, including the opinion of the State 11 Agency psychiatric consultant (see AR 20), the ALJ wrote: “However, the 12 evidence does not support more than moderate limitations in mental 13 functioning. The claimant repeatedly reported doing better on 14 15 7 The ALJ wrote:

16 The claimant was born on February 18, 1964, has a GED 17

(according to her testimony and Ex. 5F54), stands 5 feet and 4 inches tall, and weighs 253 pounds (Ex. 3E2). [¶] In or 18 about January 2015, the claimant identified manic depression, a lung condition, and a heart problem as the conditions that 19 caused her to stop working on the alleged onset date (Ex. 3E2). [¶] On December 20, 2015, the claimant reported 20 depression, anxiety, a blood clot in her leg, and respiratory problems for which she used an inhaler (Ex. 11E1) and no 21 problems with personal care (Ex. 11E2). She prepared her own meals, did light housework including laundry and vacuuming 22 (Ex. 11E4), walked and drove for transportation, could go out alone, shopped in stores for groceries once every 2 weeks for 23 45 minutes, could handle money (Ex. 11E5), watched television all day, cared for her dog, did not spend time with others, 24 did not go anywhere on a regular basis (Ex. 11E6), had problems with squatting, bending, walking, kneel[ing], 25 climbing stairs, concentration, understanding, following instructions, and getting along with others (Ex. 11E7), and 26 did not want to be around people (Ex. 11E8). She allegedly needed a friend to fill out the report because she felt 27 stressed and overwhelmed (Ex. 11E9). [¶] . . . [¶] The claimant’s breathing problems and foot swelling allegedly 28 worsened in July 2015 pursuant to which she could not walk long distances (Ex. 8E2).

1 medication and was able to manage her own daily living.” Following a 2 discussion about the evidence of Plaintiff’s physical impairments, 3 including the opinion of the State Agency medical consultant (see AR 21- 4 22), the ALJ wrote that “a limitation to a wide range of medium work is 5 warranted as a prophylactic measure.” (AR 22) 6 7

1 Legal Standard Where, as here, the ALJ finds that a claimant suffers from a medically determinable physical or mental impairment that could reasonably be expected to produce her alleged symptoms, the ALJ must evaluate “the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities for an adult . . . .” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, *3.6 A claimant initially must produce objective medical evidence establishing a medical impairment reasonably likely to be the cause of 6 SSR 16-3p, which superseded SSR 96-7p, is applicable to this 27 case, because SSR 16-3p, which became effective on March 28, 2016, was in effect at the time of the Appeal Council’s June 22, 2018 denial of 28 Plaintiff’s request for review. 20 C.F.R. § 404.1529, the regulation on evaluating a claimant’s symptoms, including pain, has not changed. 1 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 2 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a 3 claimant produces objective medical evidence of an underlying impairment 4 that could reasonably be expected to produce the pain or other symptoms 5 alleged, and there is no evidence of malingering, the ALJ may reject the 6 claimant’s testimony regarding the severity of his or her pain and 7 symptoms only by articulating specific, clear and convincing reasons for 8 doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 9 2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 10 2007)); see also Smolen, supra; Robbins v. Social Sec. Admin, 466 F.3d 11 880, 883 (9th Cir. 2006); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 12 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 13 Because the ALJ does not find that Plaintiff was malingering, the “clear 14 and convincing” standard stated above applies. 15 16 Generalized, conclusory findings do not suffice. See Moisa v. 17 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)(the ALJ’s credibility 18 findings “must be sufficiently specific to allow a reviewing court to 19 conclude the [ALJ] rejected [the] claimant’s testimony on permissible 20 grounds and did not arbitrarily discredit the claimant’s testimony”) 21 (citation and internal quotation marks omitted); Holohan v. Massanari, 22 246 F.3d 1195, 1208 (9th Cir. 2001)(the ALJ must “specifically identify 23 the testimony [the ALJ] finds not to be credible and must explain what 24 evidence undermines the testimony”); Smolen, 80 F.3d at 1284 (“The ALJ 25 must state specifically which symptom testimony is not credible and what 26 facts in the record lead to that conclusion.”). 27 28 1
2 The ALJ’s Credibility Findings 2 3 Plaintiff made the following statements in a Function Report - 4 Adult dated December 20, 2015 (see AR 301-09): 5 6 She lives in a rental house behind her friend’s house. 7 Her mental problems (depression, anxiety, etc.), respiratory problems, and blood clot in her leg limit her ability to 8 work. Her friend filled out her Function Report because filling out the forms causes her to be stressed and 9 overwhelmed. (See AR 301, 308). 10 With respect to her daily activities, she wakes up at 9 a.m. on good days (10 or 11 a.m. on bad days), eats cereal, 11 watches television, cleans up, eats lunch, watches television, and then takes a nap. She does not take care of 12 other people, but she feeds a dog. As a result of her conditions, she is no longer able to work, visit with 13 friends, and celebrate holidays. Her conditions affect her sleep. She does not have any problem with personal care, and 14 she does not need any reminders to take care of her personal needs and grooming and to take medicine. She daily prepares 15 her own meals (cereal, microwave frozen meals), which takes a few minutes. Before her conditions began, she used to cook 16 huge meals (she no longer enjoys preparing meals). On separate days she does laundry (2 times a week, takes 1/2 17 hour to fold), washes dishes (once a week, takes 1/2 hour), and vaccuums (every other day, takes 1/2 hour). She needs 18 help or encouragement with her housework when she is depressed. She goes out on good days (for 1/2 hour), 19 walking, driving a car, or riding in a car, but she does not go out on bad days. She drives, and can go out alone. She 20 goes grocery shopping once every 2 weeks (takes 45 minutes). She is able to pay bills, count change, handle a savings 21 account, and use a checkbook/money orders. Her interests are watching television (15 to 16 hours a day; prior to her 22 conditions she watched 2 to 3 hours a day) and taking care of the dog. She does not spend time with others and does not go 23 to any places on a regular basis. Her children do not visit her because she is depressed (which her children do not 24 understand). Before her conditions began, she regularly went to parties with friends and had parties at home. (See AR 25 302-06). 26 Her conditions affect her abilities to squat, bend, walk, kneel, stair-climb, concentrate, understand (on bad 27 days) and get along with others (she does not like to be around others). She can walk for 1 block before needing to 28 rest, and can resume walking after resting for 5 minutes.
3 The ALJ’s Assessment of Plaintiff’s Testimony 8 9 As set forth below, the ALJ failed to provide legally sufficient 10 reasons for discrediting Plaintiff’s testimony about the intensity, 11 persistence and limiting effects of her pain and symptoms.8 12 13 First, the ALJ failed to “specifically identify ‘what testimony is 14 not credible and what evidence undermines [Plaintiff’s] complaints.’” 15 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)(quoting Lester v. 16 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, 80 F.3d at 17 1284 (“The ALJ must state specifically what symptom testimony is not 18 credible and what facts in the record lead to that conclusion”). 19 20 Second, contrary to Defendant’s assertion (see Joint Stip. at 19), 21 the ALJ did not discount Plaintiff’s testimony about her symptoms and 22 limitations based on her ability to perform certain daily activities. 23 24 8 The Court will not consider reasons for discounting Plaintiff’s subjective symptom testimony that were not given by the ALJ 25 in the decision (see Joint Stip. at 18-19). See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)(“We are constrained to review the 26 reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 27 2001)); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons provided by the ALJ in the disability 28 determination and may not affirm the ALJ on a ground upon which he did not rely.”). 1 After stating that “[plaintiff’s] medically determinable impairments 2 could reasonably be expected to cause the alleged symptoms; however, the 3 claimant’s statements concerning the intensity, persistence and limiting 4 effects of these symptoms are not entirely consistent with the medical 5 evidence and other evidence in the record for the reasons explained in 6 this decision” (AR 20), the ALJ only discussed Plaintiff’s psychiatric 7 impairments (AR 20-21) and physical impairments (AR 21-22). The only 8 reference to Plaintiff’s daily activities was in the ALJ’s summary of 9 Plaintiff’s statements. See AR 19. 10 11 However, even if the ALJ had discounted Plaintiff’s testimony about 12 her symptoms and limitations related to her psychiatric impairments 13 based on her ability to perform certain daily activities, such as 14 preparing meals, doing laundry, vacuuming, walking, driving, going out 15 alone, grocery shopping, handling money, watching television, and caring 16 for her dog (see AR 19), this would not be a clear and convincing 17 reason. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 18 2001)(“[T]he mere fact that a plaintiff has carried on certain daily 19 activities . . . does not in any way detract from her credibility as to 20 her overall disability. One does not need to be ‘utterly incapacitated’ 21 in order to be disabled.”); Reddick, supra (“Only if the level of 22 activity were inconsistent with the Claimant’s claimed limitations would 23 these activities have any bearing on Claimant’s credibility.”). While 24 a plaintiff’s ability to spend a “substantial part” of his or her day 25 engaged in pursuits involving the performance of physical functions that 26 are transferable to a work setting may be sufficient to discredit him 27 or her, here, there is no evidence that Plaintiff was spending a 28 substantial part of her day engaged in these activities or that the 1 physical demands of such tasks as preparing meals, doing laundry, 2 vacuuming, walking, driving, going out alone, grocery shopping, handling 3 money, watching television, and caring for her dog were transferable to 4 a work setting. See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 5 2014)(“However, there is no indication here that the limited activities 6 Ghanim engaged in, often with the help of a friend, either comprised a 7 ‘substantial portion’ of Ghanim’s day, or were ‘transferrable’ to a work 8 environment.”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 9 (9th Cir. 1999). Indeed, at the hearing, the ALJ did not ask Plaintiff 10 about these activities. 11 12 It is not clear whether the ALJ considered Plaintiff’s testimony 13 about her limited abilities to perform such daily activities (see AR 303 14 [Plaintiff stated in the Function Report that she prepares microwaveable 15 frozen food which takes her “a few minutes”], AR 50 [Plaintiff stated 16 at the hearing that she only eats microwaveable food], AR 303 [Plaintiff 17 stated in the Function Report that she does laundry two times a week 18 which takes her 1/2 hour]; AR 303 [Plaintiff stated in the Function 19 Report that she vacuums one time a week which takes her 1/2 hour], AR 20 304 [Plaintiff stated in the Function Report that she goes out, walking, 21 driving a car, or riding in a car, for 1/2 hour only on “good days”], 22 AR 37 [Plaintiff stated at the hearing that her friend drove her to the 23 hearing], AR 304 [Plaintiff stated in the Function Report that every two 24 weeks she goes grocery shopping which takes about 45 minutes], and AR 25 302 [Plaintiff stated in the Function Report that she feeds a dog]). 26 Therefore, the degree to which Plaintiff could perform such daily 27 activities may not have been inconsistent with her testimony regarding 28 her symptoms and limitations. See Reddick, supra; see also Morgan v. 1 Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 2 1999)(“If a claimant is able to spend a substantial part of his day 3 engaged in pursuits involving the performance of physical functions that 4 are transferable to a work setting, a specific finding as to this fact 5 may be sufficient to discredit a claimant’s allegations.”). 6 7 Third, to the extent that the ALJ may have found there was a lack 8 of objective medical evidence supporting Plaintiff’s testimony 9 concerning her symptoms and limitations, this factor cannot, by itself, 10 support an adverse finding about Plaintiff’s testimony. See Trevizo v. 11 Berryhill, 862 F.3d 987, 1001 (9th Cir. 2017)(once a claimant 12 demonstrates medical evidence of an underlying impairment, “an ALJ ‘may 13 not disregard [a claimant’s testimony] solely because it is not 14 substantiated affirmatively by objective medical evidence.’”; quoting 15 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)); Rollins 16 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v. Apfel, 161 17 F.3d 599, 602 (9th Cir. 1998); Blaine v. Berryhill, 2018 WL 6243089, *4 18 (D. Mont. Nov. 29, 2018)(“The ALJ’s conclusion that [the claimant’s] 19 testimony would only be accepted to the extent that her hearing 20 testimony was ‘consistent with the objective medical ... evidence’ is 21 the same as rejecting subjective symptom testimony to the extent that 22 it is inconsistent with the objective medical evidence. Here, the ALJ 23 treated consistency with the objective medical evidence as a necessary 24 condition to credibility, i.e., if a certain symptom is consistent with 25 the ‘other evidence’ but inconsistent with the ‘objective medical 26 evidence’ it is, according to the ALJ, not credible. By treating 27 cconsistency with the objective medical evidence in this way, the ALJ 28 essentially determined that it can be the sole ground for determining 1 that [the claimant’s] symptom testimony is not credible, which is the 2 precise practice the Ninth Circuit prohibits.”); see also SSR 16-3p, 3 2017 WL 5180304, *7 (“We must consider whether an individual’s 4 statements about the intensity, persistence, and limiting effects of his 5 or her symptoms are consistent with the medical signs and laboratory 6 findings of record.... However, we will not disregard an individual’s 7 statements about the intensity, persistence, and limiting effects of 8 symptoms solely because the objective medical evidence does not 9 substantiate the degree of impairment related-symptoms alleged by the 10 individual.”). 11 12 Because the Court finds that the the ALJ did not discount 13 Plaintiff’s symptom testimony on legally permissible grounds, the Court 14 is unable to defer to the ALJ’s credibility determination. Cf. Flaten 15 v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir. 16 1995)(the court will defer to the ALJ’s credibility determinations when 17 they are appropriately supported in the record by specific findings 18 justifying that decision)(citations omitted). 19 20 Defendant asserts that any error by the ALJ in discounting 21 Plaintiff’s testimony was harmless (see Joint Stip. at 19). The Court 22 disagrees. Since the ALJ did not provide reasons for discounting 23 Plaintiff’s testimony about her symptoms and limitations, the ALJ’s 24 error cannot be deemed “inconsequential to the ultimate nondisability 25 determination.” See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 26 1055 (9th Cir. 2006); Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 27 1155, 1162 (9th Cir. 2008). 28 1 B. Remand Is Warranted 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court’s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 6 useful purpose would be served by further administrative proceedings, 7 or where the record has been fully developed, it is appropriate to 8 exercise this discretion to direct an immediate award of benefits. Id. 9 at 1179 (“[T]he decision of whether to remand for further proceedings 10 turns upon the likely utility of such proceedings.”). However, where, 11 as here, the circumstances of the case suggest that further 12 administrative review could remedy the Commissioner’s errors, remand is 13 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 14 Harman v. Apfel, 211 F.3d at 1179-81. 15 16 Since the ALJ failed to properly assess Plaintiff’s symptom 17 testimony, remand is appropriate. Because outstanding issues must be 18 resolved before a determination of disability can be made, and “when the 19 record as a whole creates serious doubt as to whether the [Plaintiff] 20 is, in fact, disabled within the meaning of the Social Security Act,” 21 further administrative proceedings would serve a useful purpose and 22 remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 23 2014)(citations omitted).9 24 9 The Court has not reached any other issue raised by Plaintiff 25 except to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 26 “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, 27 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s claim regarding the ALJ’s failures to properly develop the medical 28 record and to properly consider the medical evidence of record in (continued...) 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant 5 to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: August 16, 2019 10 11 12 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 9 (...continued) assessing Plaintiff’s RFC (see Joint Stip. at 3-9). Because this matter 28 is being remanded for further consideration, these issues should also be considered on remand.