JACQUELINE CHOOLJIAN, Magistrate Judge.
On May 1, 2015, Eric Lee Baylis ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's applications for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument.
Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand.
In May 2011, plaintiff filed applications for Supplemental Security Income and Disability Insurance Benefits alleging disability on December 31, 2010 (which was later amended to October 31, 2009) due to impairments related to plaintiff's wrists, right elbow, right knee, and left shoulder, as well as "problems with reading and understanding." (Administrative Record ("AR") 13, 72-73, 291, 302). The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on February 22, 2013. (AR 68-122). At a supplemental hearing on August 16, 2013, the ALJ heard additional testimony from plaintiff (who was again represented by counsel), and testimony from a different vocational expert ("Second VE") and a medical expert. (AR 29-67).
On September 26, 2013, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 13-24). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: left shoulder adhesive capsulitis, left shoulder lipoma, obesity, and bilateral knee degenerative joint disease (mild) (AR 15); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 16); (3) plaintiff retained the residual functional capacity to perform a range of light work (20 C.F.R. §§ 404.1567(b), 416.967(b)) with additional limitations
The Appeals Council denied plaintiff's application for review. (AR 1).
To qualify for disability benefits, a claimant must show that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
In assessing whether a claimant is disabled, an ALJ is required to use the following five-step sequential evaluation process:
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error.
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Even when an ALJ's decision contains error, it must still be affirmed if the error was harmless.
A reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the ALJ's error was harmless.
Plaintiff contends that the ALJ inadequately evaluated the credibility of his subjective complaints. (Plaintiff's Motion at 3-6). Plaintiff testified that he (i) was unable to carry even a gallon of milk without pain; (ii) could not carry more than 10 pounds with his left (dominant) arm, and 15 pounds with his right arm; (iii) could not sit for more than one hour due to severe back pain; (iv) was unable to reach above shoulder height with his left arm, and could not reach above his head with his right arm; (v) could not use his hands for more than an hour without them locking up and his arms going numb; (vi) would fall downstairs because both knees would "give out"; (vii) could only "occasionally" drive; (viii) experienced constant pain — on average "seven or eight" out of 10; (ix) had problems sleeping due to pain; and (x) on a "typical day" would just sit in the garage and mostly listen to music or "rearrang[e] some stuff." (AR 92-101).
As discussed below, this Court concludes that the ALJ erred in evaluating the credibility of plaintiff's complaints. As the Court cannot find the ALJ's error harmless, a remand is warranted.
When a claimant provides "objective medical evidence of an underlying impairment which might reasonably produce the pain or other symptoms alleged," and there is no affirmative finding of malingering, the ALJ may discount the credibility of the claimant's subjective complaints only by "providing specific, clear and convincing reasons for doing so."
An ALJ's credibility determination must be specific enough to permit a reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's subjective complaints.
First, the Court addresses the ALJ's determination to discount the credibility of plaintiff's subjective complaints based on findings that plaintiff had "a somewhat normal level of daily activity and interaction" and that plaintiff had admitted to engaging in "activities of daily living including mowing the lawn, watering plants, making repairs around the house, preparing his own meals, and going grocery shopping once a month." (AR 18) (citing Exhibits 5E at 7-8 [AR 340-41], 6E at 4 [AR 349]). The ALJ concluded that "[plaintiff's] ability to participate in such activities undermined the credibility of [plaintiff's] allegations of disabling functional limitations," noting "[s]ome of the physical and mental abilities and social interactions required in order to perform [plaintiff's daily] activities [were] the same as those necessary for obtaining and maintaining employment." (AR 18). The ALJ did not, however, specify which of plaintiff's daily activities purportedly conflicted with which of plaintiff's subjective complaints. A general finding that plaintiff's collective daily activities are inconsistent with the alleged severity of some or all of plaintiff's subjective complaints is not sufficiently specific to permit the Court to determine whether the ALJ discounted plaintiff's credibility on permissible grounds.
Moreover, substantial evidence does not support the ALJ's conclusion that plaintiff engaged in "a somewhat normal level of daily activity and interaction." For example, the ALJ said plaintiff admitted in a function report that his activities generally included "mowing the lawn." (AR 18) (citing, in part, Exhibit 5E at 7 [AR 340]). More precisely, however, the function report reflects that plaintiff would mow the lawn only "every [three] week[s]." (AR 340). The ALJ also said plaintiff admitted to "making repairs around the house." (AR 18) (citing, in part, Exhibit 5E at 7 [AR 340]). Although the function report reflects that plaintiff initially circled "repairs" as one of the "household chores" he was "able to do," it later explains that the extent of his ability to engage in any household chores was essentially limited to cleaning his room and bathroom (rather than making repairs around the house on a regular basis as the ALJ's opinion suggests). (AR 340-41). The ALJ also noted that plaintiff admitted that he was able to prepare his own meals. (AR 18, 340). In the function report, however, plaintiff clarified that such ability was very limited — i.e., he would make very simple foods (i.e., "hot dogs" and "microwave stuff"), he took only a "few minutes" to do so, and he was unable to "do things that take a lot of time" when preparing meals. (AR 340).
Nonetheless, even assuming that plaintiff retained the ability to carry on certain minimal activities of daily living, the ALJ did not find, nor does the record reflect, that such activities "consume[d] a substantial part of [plaintiff's] day," and thus such evidence does not constitute a clear and convincing reason for discounting plaintiff's credibility.
Second, the ALJ also discounted plaintiff's credibility stating that "[t]he treatment records reveal the [plaintiff] received routine and conservative treatment since the alleged onset date." (AR 18). An ALJ may properly consider evidence of a claimant's conservative treatment as undermining subjective complaints of debilitating pain.
As defendant suggests, the ALJ might have been able to discount plaintiff's credibility on other grounds. (Defendant's Motion at 10). Since the ALJ did not do so in the administrative decision, however, this Court may not affirm the ALJ's non-disability determination based on the additional grounds proffered by the defendant.
Third, the ALJ found that the objective medical evidence does not support plaintiff's subjective complaints. (AR 18). Since the ALJ did not provide any other clear and convincing reason for discounting plaintiff's credibility, however, the mere lack of objective medical evidence to support the alleged severity of plaintiff's pain is an insufficient basis for the ALJ's credibility determination.
Finally, the Court cannot conclude that the ALJ's errors were harmless. For example, the Second VE testified that there would be no work available if plaintiff (or a hypothetical individual with the same characteristics as plaintiff) was "off task . . . roughly 20 percent of the day." (AR 62). In light of the significant functional limitations reflected in plaintiff's subjective symptom testimony, the Court cannot "confidently conclude that no reasonable ALJ, when fully crediting the [plaintiff's] testimony, could have reached a different disability determination."
For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.
LET JUDGMENT BE ENTERED ACCORDINGLY.
