MEMORANDUM DECISION AND ORDER

STEPHEN J. HILLMAN, Magistrate Judge.

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner.

I. BACKGROUND

This Complaint seeks to overturn the Decision of the Social Security Commissioner denying disability benefits.

On April 8, 2010, Dickie Morales filed a claim for Disability Insurance Benefits. Administrative Record ["AR"] 132. After Plaintiff's claim was denied on September 13, 2010 and January 3, 2011, he requested a hearing before an Administrative Law Judge (ALJ). AR 63, 67, 73. The ALJ denied Plaintiff's claim on October 6, 2011, and the Appeals Council denied Plaintiff's request for review on May 18, 2013. AR 1. The plaintiff filed a Complaint in the United States District Court on July 16, 2013.

The plaintiff and the defendant have filed their pleadings (Plaintiff's Brief in Support of Complaint ["Plaintiff's Brief"]; Defendant's Memorandum in Support of Defendant's Answer ["Defendant's Answer"]); Plaintiff's Reply to Defendant's Memorandum ["Plaintiff's Reply"]); and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.

II. DISCUSSION

The ALJ erred in finding the plaintiff not credible.

Once a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged, and there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of his pain and symptoms only by articulating clear and convincing reasons for doing so. Smolen v. Chater, 157 F.3d 1273, 1281 (9th Cir. 1996); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

The plaintiff claimed in his function reports that he was unable to lift more than ten pounds, walk for more than ten minutes, stand for more than twenty minutes, or pay attention for more than twenty minutes. AR 22. The plaintiff also testified that he could not sit for more than thirty minutes. AR 22. In addition, the plaintiff noted in his pain questionnaire that constant pain interfered with his sleep. AR 22.

Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for finding him not credible when determining that he had a Residual Functional Capacity ("RFC") of sedentary exertion. The ALJ held that Plaintiff's alleged impairments undermined his credibility because these limitations were inconsistent with the plaintiff's ability to "regularly attend church, socialize with friends over the phone, read, watch television, shop by phone and mail, prepare simple meals, perform light household tasks, and care for the household pet". AR 22.

Such daily activities are not inconsistent with the plaintiff's alleged limitations. None of these activities require lifting more than ten pounds, walking or standing for more than several minutes at a time, or sitting for more than thirty minutes, presuming that the plaintiff is permitted to sit and stand in church as needed to relieve his discomfort. Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) ("the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability."). Furthermore, Plaintiff's alleged inability to pay attention for more than twenty minutes would not preclude him from attending church, holding short phone conversations, reading in small increments, watching television, shopping, preparing simple meals, performing light household work, or caring for a pet.

The defendant cites Burch v. Barnhart, 400 F.3d 676, 680 and Thomas v. Barnhart, 278 F.3d 948, 959, two cases in which the ALJ properly discounted Plaintiff's credibility because Plaintiff's ability to perform daily activities such as cooking, accomplishing simple household tasks, and shopping suggested the ability to work. However, in Burch, the ALJ "did not solely rely on ... Burch's daily activities in discrediting her testimony", but also noted that the plaintiff's testimony was suspect because she had not sought additional treatment after her diagnosis. Burch at 680, 681. Similarly, in Thomas, the plaintiff's daily activities were just one factor the ALJ considered in dismissing the plaintiff's credibility. The ALJ in Thomas found that the plaintiff's history of unemployment prior to her disability and her conflicting testimony of prior drug and alcohol use also contributed to her lack of credibility. Thomas at 959.

Here, the ALJ discounted Mr. Morales' credibility based solely on his inconsistent alleged functional limitations. Because Mr. Morales' daily activities were not inconsistent with his alleged limitations, and since the physicians' objective findings cannot, by themselves, support the credibility finding, the ALJ improperly discounted Mr. Morales' credibility when determining his RFC designation. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ("One does not need to be `utterly incapacitated' in order to be disabled."); Reddick v. Chater, supra ("Only if the level of activity were inconsistent with the Claimant's claimed limitations would these activities have any bearing on Claimant's credibility"); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987).

The ALJ erred in finding that sleep apnea and varicose veins were non-severe impairments.

The "severe" impairment requirement is a threshold element which plaintiff must prove in order to establish disability within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 146 (1987). An impairment will be considered non-severe when medical evidence establishes only a "slight abnormality or combination of slight abnormalities which would have not more than a minimal effect on the individual's ability to work, even if age, education or work experience were specifically considered." Social Security Ruling 85-28; Bowen v. Yuckert, 482 U.S. at 154.

Here, the ALJ found that the plaintiff's sleep apnea was a non-severe impairment. AR 19. Dr. Pedram Navab, the doctor who performed the sleep study, stated that Plaintiff's sleep apnea was a Class 2 impairment indicating reduced daytime alertness. AR 248. The ALJ found that the plaintiff's sleep apnea was not a severe impairment because it "should be amenable to proper control by adherence to recommended medical management". AR 19.

However, although Dr. Navab found that better sleep hygiene and use of a nasal CPAP machine could help relieve the plaintiff's condition, he also opined that if the plaintiff took these remedial measures, the plaintiff's sleep apnea would still restrict his ability to perform work requiring complete awareness and concentration. AR 247, 249. Since the ALJ did not reject Dr. Navab's opinion that sleep apnea would have more than a minimal effect on the plaintiff's ability to work even if the plaintiff took remedial measures, sleep apnea met the de minimis standard required for a severe impairment. Therefore, the ALJ improperly concluded that Plaintiff's sleep apnea was non-severe.

In addition, the ALJ found Plaintiff's varicose veins to be a non-severe impairment. AR 19. Although varicose veins caused Plaintiff burning pain, the ALJ noted that the impairment "should be amenable to proper control by adherence to recommended medical management and medication compliance". AR 19. Dr. Huston, the non-treating, non-examining physician, recommended that the plaintiff wear compression stockings to help relieve the pain, indicating that elastic surgery stockings "would be the number one thing that I would suggest". AR 53.

However, Dr. Huston did not indicate that the stockings would allow the plaintiff to fully regain his ability to work. AR 52, 53. Since the ALJ did not cite evidence that the plaintiff's varicose veins would only minimally impact his ability to do work if the compression stockings were worn, the ALJ improperly found Plaintiff's varicose veins to be a non-severe impairment.

III. ORDER

For the forgoing reasons, the Decision of the Commissioner is reversed and remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).