EDWARD M. CHEN, District Judge.
On February 23, 2009, Gayle Holmlund filed for disability insurance benefits and supplemental security income ("SSI"). During administrative proceedings, her claim was denied. Ms. Holmlund has exhausted her administrative remedies with respect to her claim of disability and has sought judicial review of the Commissioner's denial of benefits through this action. The Court has jurisdiction for judicial review pursuant to 42 U.S.C. § 405(g). Ms. Holmlund has moved for summary judgment for an award of benefits or, in the alternative, remand for additional proceedings. The Commissioner has cross-moved for summary judgment. Having considered the parties' briefs and accompanying submissions, the Court hereby
Ms. Holmlund was born on July 19, 1961, making her a "younger person" on her alleged disability onset date.
Ms. Holmlund's lengthy medical records, totaling over 1200 pages, contain information about her physical and mental ailments. AR 1-1206. At issue in this case is Ms. Holmlund's excess pain symptoms, which implicates her mental health. A discussion of the most relevant medical information follows.
On October 24, 2008, Qualified Medical Examiner ("QME") Dr. Klein conducted a medical legal evaluation in connection with Ms. Holmlund's Workers' Compensation claim. AR 486-92. Dr. Klein diagnosed Ms. Holmlund with "metarsalgia of the third and fourth left metatarsal heads from postoperative plantar fat pad atrophy" and "chronic left distal plantar fasciitis with nodule and contracture due to disuse."
Several months after Ms. Holmlund visited Dr. Klein, she was referred to Dr. Wedemeyer for her chronic pain. AR 418. In a February 17, 2009 consultation, Dr. Wedemeyer found evidence of both neuropathic and musculoskeletal causes for Ms. Holmlund's chronic pain, and ultimately diagnosed Ms. Holmlund with chronic pain syndrome. AR 419. In a letter addressed to Ms. Holmlund's Workers' Compensation claim adjuster, Dr. Wedemeyer advised Ms. Holmlund to follow Dr. Klein's advice and obtain proper orthotics. AR 420. He also prescribed Cymbalta, not as an anti-depressant, but as an antineuropathic medication to help mitigate her pain. AR 419.
A few days later, on February 20, 2009, Ms. Holmlund visited Dr. Valmassy, a podiatrist, to discuss additional treatment options for the "sharp, shooting, burning pain extending into her second, third, fourth and fifth toes" on her left foot. AR 423. Dr. Valmassy believed "a series of injections would be appropriate" and noted that "initial conservative management via an MBT would be helpful to decrease weightbearing to the ball of each foot."
On April 17, 2009, Dr. Haveliwala, a State medical consultant, evaluated Ms. Holmlund's medical record to determine whether she qualified for DIB. AR 862-66. When Dr. Haveliwala reviewed the medical record, it did not contain statements from treating or examining sources regarding Ms. Holmlund's physical capacities. AR 866. In a physical residual functional capacity ("RFC") assessment, Dr. Haveliwala found that Ms. Holmlund could perform a significant range of light work. AR 867-69. According to Dr. Haveliwala, Ms. Holmlund was limited to standing or walking no more than two hours in an eight-hour workday; sitting about six hours in an eight-hour workday; frequently climbing stairs/ramps, stooping, kneeling, crouching, balancing and crawling; and never climbing ladders/ropes or scaffolds. Id.
Earlier that month, in a routine follow up visit, Dr. Wedemeyer noticed that "Ms. Holmlund [was] having difficulty coping with her chronic left foot and neuropathic pain." AR 1043. In June, Dr. Wedemeyer referred Ms. Holmlund to Drs. Balowitz and Garavanian to determine whether she would be an ideal candidate for an eight-week functional restoration program ("FRP"). AR 955-65. On June 3, 2009, Drs. Balowitz and Garavanian used the GAF, an objective psychological test, and the BDI and BAI, subjective psychological tests, to assess Ms. Holmlund's mental health.
Ms. Holmlund was admitted to the FRP on August 3, 2009. AR 903. Dr. Wedemeyer provided medical supervision throughout the FRP, while Drs. Balowitz and Garavanian supervised Ms. Holmlund's mental health. Id. Ms. Holmlund entered the FRP with significant physical limitations. AR 906. At the beginning of the program, she could only lift and carry five pounds and bear 40% weight through her left lower extremity. AR 907. By the second week, Ms. Holmlund could lift and carry seven pounds and bear 50% weight through her left lower extremity. AR 934. Around August 17, 2009, the third week of the FRP, Ms. Holmlund's progress faltered as she struggled with acute pain in her bilateral knees. AR 933. After the fourth week of the FRP, Ms. Holmlund's ability to lift and carry was "no longer tested due to orthopedic recommendations." AR 934.
In the last few weeks of the FRP, Ms. Holmlund's knee continued to bother her, but she still "demonstrated moderate changes in the physical and functional aspects of the program." AR 908. By September 21, 2009, the FRP discharge date, Ms. Holmlund had increased her weight bearing to 90-95% through her left lower extremity and "could occasionally negotiate fifteen pounds." Id. In his discharge summary, Dr. Wedemeyer opined that Ms. Holmlund was at a light weight work capacity category and could return to modified work. AR 908, 913.
Ms. Holmlund's September 21, 2009 FRP discharge report indicated that her mental health had improved as well. Id. Her post-program BDI Score was a 7 (initially a 22), placing her in the minimal range of depressive symptoms. Id. Her post-program BAI score was a 3 (initially an 11), reflecting a minimal range of anxiety symptoms. Id. Drs. Balowitz and Garavanian did not assign Ms. Holmlund a new GAF score at discharge. AR 903-13 (Showing this absence). In addition, the doctors consistently noted that Ms. Holmlund was an active participant in her Psychology classes. AR 918, 923, 928, 929. Dr. Garavanian also checked a box on Ms. Holmlund's discharge report showing that she made `moderate' changes in her emotional and psychological stability at the end of the FRP.
Despite these improvements, Dr. Garavanian believed Ms. Holmlund was "at risk of recidivism given her physical limitations and her psychological circumstances." AR 907. He noted that Ms. Holmlund was unable to coach herself through painful episodes and had made `minimal' progress in her ability to manage flare ups. AR 910. Furthermore, he believed that Ms. Holmlund's dependance on medical treatment and application of pain coping tools was only `fair' at discharge. AR 911. Dr. Garavanian ultimately recommended that Ms. Holmlund undergo ten more sessions with a pain therapist. AR 906.
On October 16, 2009, three weeks after Ms. Holmlund was discharged from the FRP, Dr. Wedemeyer noted that Ms. Holmlund's depression had reemerged, she was spending most of the day in bed, and she had lost interest in activities in socialization. AR 1062.
At the request of Ms. Holmlund's attorney, QME Dr. Klein performed a second medical legal evaluation on November 9, 2009; his second evaluation provided no new information. AR 1109-18. Dr. Klein was still uncertain if Ms. Holmlund could return to regular work. AR 1116. He re-stated that he would "like to see her try a mainly sitting position initially for 4 hours per day on a trial basis to determine tolerance." Id. He opined that she could tolerate standing and walking one to three hours. Id.
In a November 20, 2009 follow-up visit, Dr. Wedemeyer was, once again, concerned with Ms. Holmlund's psychological well-being. AR 1070. He noticed that Ms. Holmlund was no longer practicing the strategies she learned from the FRP and was beginning to socially isolate herself. Id. Consequently, he referred Ms. Holmlund to pain psychologist, Dr. King, for ten sessions of psychotherapy. Id.
In his December 21, 2009 progress report, Dr. Wedemeyer wrote, "[Ms. Holmlund] said that since leaving the program she had been quite depressed and had been spending many days at home in bed. She had difficulty getting out of the bed in the morning and her legs felt heavy. She has not been exercising or practicing any of the techniques that she learned in the program." AR 1072.
On January 15, 2010, State agency evaluator Dr. Davis completed a Psychiatric Review Technique Form ("PRTF") at the request of California Department of Developmental Services. AR 888. After reviewing Ms. Holmlund's entire medical record, Dr. Davis determined that Ms. Holmlund was mildly limited in the following areas: activities of daily living; maintaining social functioning; and maintaining concentration, persistence, or pace. AR 896. There was insufficient evidence to determine whether Ms. Holmlund was limited in the fourth category, repeated episodes of decompensation. Id. Based on his findings, Dr. Davis concluded that Ms. Holmlund did not suffer from a severe mental impairment. AR 888.
Dr. King treated Ms. Holmlund from January 2010 to March 2010. AR 971-91. Ms. Holmlund made minimal progress during these psychotherapy sessions. Id. On March 30, 2010, Dr. King ultimately concluded that Ms. Holmlund be evaluated by a psychiatrist to determine if her depressed mood could be treated with medication. AR 990.
By April 2010, Ms. Holmlund had trialed eight antinueropathic medication with little success. AR 1080. On April 30, 2010, Ms. Holmlund was back on Neurontin, a drug she discontinued because of its sedating effects back in November of 2009. AR 1070. In his April 30, 2010 progress report, Dr. Wedemeyer believed that Ms. Holmlund was now tolerating the Neurontin quite well. AR 1094.
Ms. Holmlund continued seeing Dr. Valmassy several times a year until April 29, 2010. AR 999. In Dr. Valmassy's last progress report, on April 29, 2010, he noted that Ms. Holmlund "has not responded to previous injection, orthotic devices, or change in shoes." AR 1000. Dr. Valmassy also expressed his interests in pursuing other investigative techniques to determine the cause of Ms. Holmlund's pain. Id.
QME Dr. Walcott examined Ms. Holmlund's mental health on June 11, 2010 in connection with her Workers' Compensation claim. AR 1164. After reviewing Ms. Holmlund's lengthy medical record, interviewing her for 3.25 hours, and administering and interpreting various psychological tests, Dr. Walcott assigned Ms. Holmlund a GAF score of 63, indicating mild symptoms of depression. AR 1193. With respect to social functioning, Dr. Walcott assigned Ms. Holmlund a class three impairment, indicating that Ms. Holmlund has a mild, moderate degree of problems in this domain. AR 1193. To support this finding, Dr. Walcott noted that Ms. Holmlund has stopped many of the activities that she once enjoyed, such as attending church and volunteering. Id. Despite these limitations, Dr. Walcott concluded that "there was no psychiatric data to suggest the claimant was unable to return to her usual and customary position due to any mental health issue or concern despite a psychiatric rating." AR 1195. Curiously, Dr. Walcott noted that data from the Pain Apperception Test and Minnesota Multiphasic Personality Inventory-2 (`MMPI-2") psychological tests were not congruent with his opinion. AR 1191. Regarding the Pain Apperception Test, he wrote:
AR 1191. Additionally, Dr. Walcott believed that the data from the MMPI-2 indicating that Ms. Holmlund had moderate to severe distress was "partially congruent with his opinion that the claimant experiences a residual and mild degree of psychiatric symptoms of her Depressive Disorder, NOS condition." AR 1191.
On July 20, 2010, Dr. Thomas, a nonexamining, consulting psychologist, blindly and independently scored the tests administered by Dr. Walcott. AR 1164. Some of these tests, like the BDI were entirely based on Ms. Holmlund's subjective reports, while others, like the MMPI-2 were more objective. AR 1199-1206. After interpreting the data, Dr. Thomas opined that Ms. Holmlund "is experiencing moderate to severe distress." AR 1205. Dr. Thomas's opinion was inconsistent with Dr. Walcott's conclusion that Ms. Holmlund was experiencing only mild to moderate symptoms of depression or impairment. AR 1191, 1193.
In his final progress report, dated December 6, 2010, Dr. Wedemeyer wrote:
AR 1134-5.
On February 23, 2009, Ms. Holmlund filed for DIB alleging disability as of March 6, 2007 due to chronic pain syndrome, chronic left foot plantar neuralgia, and affective mood disorder. AR 16, 76. The Social Security Administration ("SSA") denied her applications initially and upon reconsideration in 2009 and 2010. AR 78, 83. In response, Ms. Holmlund retained counsel and requested a hearing before an administrative law judge ("ALJ"). AR 88. The hearing was conducted on January 11, 2013. AR 37-66. At the hearing, the ALJ heard testimony from Ms. Holmlund and a Vocational Expert ("VE"). Id.
In a March 4, 2011 decision, the ALJ concluded that Ms. Holmlund was not disabled because she was capable of performing her past relevant work as a human resources manager, personnel recruiter, and management compensation specialist. AR 14-24. In the alternative, Ms. Holmlund had the residual functional capacity ("RFC") to perform skilled and unskilled sedentary work as defined in 20 C.F.R. 404.1567(a). AR 18. The ALJ evaluated Ms. Holmlund's claim of disability using the five-step sequential evaluation process for disability set forth at 20 C.F.R. § 404.1520(a)(4):
Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003).
At step one, the ALJ found that Ms. Holmlund had not engaged in substantial gainful activity since March 6, 2007, the alleged disability onset date. AR 16.
At the second step, the ALJ determined that Ms. Holmlund's impairments of chronic pain and left foot plantar neuralagia were "severe" for Social Security purposes. AR 16-7.
As for Ms. Holmlund's major depressive disorder, the ALJ determined that she was "only mildly restricted in her abilities to perform normal daily activities, to interact socially, and to concentrate, persist, or maintain her pace." AR 17. Accordingly, her mental impairment was deemed "non-severe" for Social Security purposes. Id. To support this finding, the ALJ relied heavily upon Qualified Medical Examiner ("QME") Dr. Walcott's June 11, 2010 evaluation and State agency Evaluator Dr. Davis' January 15, 2010 psychiatric review technique form ("PRTF"). AR 17. The ALJ gave little weight to the opinions of doctors who "afford[ed] the maximum possible credibility to the claimant's subjective complaints of symptoms and functional limitations." AR 17-8.
At step three, the ALJ determined that Ms. Holmlund's impairments or combination of impairments did not meet or medically equal the criteria of an impairment listed in the regulations. AR 18. He elaborated upon this finding in his step four analysis. Id.
At step four, the ALJ must make two findings: first, the ALJ must determine a claimant's RFC for work based on objective medical evidence and the claimant's subjective complaints; second, the ALJ must determine whether the claimant retains the capacity to return to her past relevant work. 20 C.F.R. § 404.1545(a). The ALJ adopted Dr. Wedemeyer's September 2009 RFC assessment and found that Ms. Holmlund had the RFC to perform past sedentary work as defined in 20 C.F.R. § 404.1567(a) with a few exceptions — Ms. Holmlund cannot lift more than ten pounds, sit for more than six hours in an eight hour day, and stand or walk for over two hours in an eight hour day. AR 21.
Additionally, the ALJ made an adverse credibility determination and rejected Ms. Holmlund's excess pain testimony because her "statements concerning the intensity, persistence and limited effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." AR 21. The ALJ based his adverse credibility finding on two grounds: (1) selected progress reports from treating physician, Dr. Wedemeyer, and (2) alleged inconsistencies between Mr. Holmlund's pain testimony and her daily activities. Id. As mentioned above, Dr. Wedemeyer's September 2009 report indicated that Ms. Holmlund "increased her weight bearing abilities from 40% in her first week to 90-95% in her last week"; "could occasionally lift and/or carry fifteen pounds, constantly sit six to eight hours, and occasionally stand and/or walk one to three hours"; and "demonstrated an improvement in chronic pain management skills." AR 20. As additional evidence, the ALJ cited Dr. Wedemeyer's December 6, 2010 progress report, which stated that Ms. Holmlund "reports only mild cognitive impairment and feels that the benefit from her medication outweigh the side effects." AR 21, 1135. The ALJ also relied upon a third party function report from Ms. Holmlund's mother and Ms. Holmlund's own hearing testimony to support his adverse credibility determination.
Despite this finding, the ALJ continued to step five to determine whether a significant number of jobs in the national economy existed given Ms. Holmlund's age, education, work experience, and RFC. AR 23. Based upon VE testimony, ALJ ultimately concluded that Ms. Holmlund was not disabled because she could perform her past work and a full range of unskilled, sedentary level work. AR 18.
On May 21, 2012, the Appeals Council denied a review of Ms. Holmlund's hearing, rendering the ALJ's decision final. AR 4-7. Ms. Holmlund has sought judicial review, requesting an award of benefits or, in the alternative, a remand for additional proceedings. See Compl., Docket No. 1.
Administrative decisions in Social Security Disability cases are reviewed under a "substantial evidence test." See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). A district court may disturb the final decision of the SSA "only if it is not supported by substantial evidence or if it is based on legal error." Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (internal quotation marks omitted). The Ninth Circuit has stated that "[s]ubstantial evidence means more than a scintilla but less than a preponderance." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal quotation marks omitted). It is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Where evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Id. (internal quotation marks omitted).
In the instant case, Ms. Holmlund, who is representing herself pro se, argues that the ALJ did not adequately consider the limitations posed by her chronic pain. See generally Plaintiff's Motion for Summary Judgment ("Motion"). The Court construes Ms. Holmlund's Motion as a challenge to the ALJ's adverse credibility finding, specifically, the ALJ's rejection of Ms. Holmlund's excess pain testimony.
At the hearing, Ms. Holmlund testified that she lives in chronic pain resulting from nerve damage in her left foot. AR 42. Ms. Holmlund explained that her chronic pain "would be a very distracting component of [her] life to working an eight hour day, forty hour week." AR 43-4. She stated that she "is challenged just getting out of bed many days" and, if she did have a job, she would likely be fired for having too many absences. Id. When asked how her pain would specifically restrict her in a work environment, Ms. Holmlund responded:
AR 44. Ms. Holmlund testified that she experiences pain flare-ups once every two or three days depending on how much she exerts herself. AR 45.
Because of her chronic pain, Ms. Holmlund testified that she could only stand for twenty minutes, walk for ten to twenty minutes, and lift twenty pounds. AR 42-3. She testified that she grocery shops once to twice a week, cooks herself microwave dinners, does her own laundry, and attends physical therapy twice a week. AR 47-8. She uses her computer to e-mail or Facebook two to three hours a day, four times a week. AR 48, 51. If her pain is particularly troublesome, she prematurely stops her computer usage. AR 52. Ms. Holmlund also testified that she had recently spent no more than an hour Christmas shopping at the mall. AR 46. Ms. Holmlund admitted that she is not seeing a mental health specialist or taking medication for her depression. AR 50.
Though the ALJ believed Ms. Holmlund's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," he rejected Ms. Holmlund's excess pain testimony because her "statements concerning the intensity, persistence and limited effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." AR 21.
"Credibility determinations are within the province of the ALJ's responsibilities, and will not be disturbed, unless they are not supported by substantial evidence." Myers v. Colvin, 954 F.Supp.2d 1163, 1174 (W.D. Wash. 2013). To determine whether a claimant's excess pain testimony is credible, the ALJ performs a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929. First, the ALJ "must consider whether there is underlying medically determinable physical or mental impairments that could reasonably be expected to produce the individual's pain or other symptoms." See SSR 96-7p, 1996 WL 374186. The claimant "need not show that her impairment could reasonably be expected to cause the severity of the symptoms she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Thus, "the ALJ may not reject subjective symptom testimony . . . simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Id; see also Robins v. SSA, 466 F.3d 880, 884 (9th Cir. 2006) (the regulations prohibit the ALJ from discrediting claimant's testimony because it is "not consistent with or supported by the overall medical evidence of record").
Second, once an underlying impairment has been shown, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Smolen, 80 F.3d at 1281). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. The clear and convincing standard is not an easy requirement to meet; this standard is "the most demanding required in Social Security cases." Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 990, 924 (9th Cir. 2002); see also Garrison v. Colvin, No. 12-15103, 2014 U.S. App. LEXIS 13315, at *51 (9th Cir. Jul. 14, 2014).
Because some symptoms, such as pain, are difficult to quantify, 20 C.F.R. § 404.1529 (c) (3) lists relevant factors to assist ALJs in their adverse credibility analysis. These factors include:
Soc. Sec., 20 Fed. Reg. § 404.1529 (c) (3). These factors "ensure that the determination of disability is not a wholly subjective process, turning solely on the identity of the adjudicator." Bunnel v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991).
Here, as noted above, the ALJ found Ms. Holmlund's medically determinate impairments could reasonably be expected to cause the alleged symptoms. Having found no evidence of malingering, the ALJ was thus required to provide specific, clear and convincing reasons for rejecting Ms. Holmlund's excess pain testimony. The ALJ failed to do so. Rather, the ALJ scattered several reasons for discrediting Ms. Holmlund throughout his opinion and used boilerplate language to conclude ultimately that Ms. Holmlund's statements "are inconsistent with the above residual functional capacity assessment." AR 18-21. While the ALJ's reasons for rejecting Ms. Holmlund's testimony are not perfectly clear, it appears that the ALJ based his adverse credibility finding on two grounds: (1) selected portions from Dr. Wedemeyer's progress notes and (2) the alleged inconsistencies between Ms. Holmlund's daily activities and her pain testimony. For the reasons stated below, the Court finds these do not constitute clear and convincing reasons for rejecting Ms. Holmlund's testimony.
Ms. Holmlund argues that the ALJ's selective use and interpretation of medical records does not accurately reflect her medical case. See Plaintiff's Response to Defendant's Cross-Motion Argument ("Opp.") 2:19-20. The Court agrees, and finds that the ALJ's selective reliance on Dr. Wedemeyer's note does not accurately reflect Ms. Holmlund's medical record. Therefore, these notes, with nothing further, should not be used to discredit Ms. Holmlund's excess pain testimony.
An ALJ cannot seek to justify negative credibility findings by "ignoring competent evidence in the record that suggests an opposite result." Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984); Varney v. Sec. of Health and Human Serv., 859 F.3d 1396, 1399 (1988). Rather, "[a]n ALJ must consider all of the relevant evidence in the record and may not point to only those portions of the records that bolster his findings." Monteau v. Colvin, No. 12-1153, 2013 U.S. Dist. LEXIS 49266, at *17 (C.D. Cal. Apr. 4, 2013); see also Holohan v Massanari, 246 F.3d 1195, 1203-5 (9th Cir. 2001) (reversing adverse credibility finding where ALJ selectively quoted doctor's records out of context).
In the instant case, the ALJ selectively quoted Dr. Wedemeyer's September 2009 FRP discharge summary notes and December 2010 progress report to make it seem as if Ms. Holmlund was fully capable of managing her pain. The ALJ heavily relied upon Dr. Wedemeyer's RFC assessment from his September 2009 FRP discharge summary to rebut Ms. Holmlund's testimony. The RFC assessment indicated that Ms. Holmlund "increased her weight bearing abilities from 40% in her first week to 90-95% in her last week," "could occasionally lift and/or carry fifteen pounds, constantly sit six to eight hours, and occasionally stand and/or walk one to three hours." AR 20. The Court takes issue with the ALJ's use of an RFC report from 2009 to discredit Ms. Holmlund's 2011 testimony, especially since Ms. Holmlund relapsed three weeks after she was discharged from the FRP. AR 1066. This relapse was not mentioned in the ALJ's decision. AR 14-22 (Showing this absence). In addition, the ALJ relied upon the same discharge report to conclude that Ms. Holmlund "demonstrated an improvement in chronic pain management skills" during the FRP. Id. However, the FRP discharge report indicated that Ms. Holmlund's ability to coach herself through painful episodes was minimal at discharge. AR 910. The two pieces of evidence cited by the ALJ, therefore, do not accurately reflect the cyclical nature of Ms. Holmlund's mental health and the changed circumstances and conditions that obtained after the 2009 assessment.
Additionally, the ALJ selectively quoted Dr. Wedemeyer's December 6, 2010 FRP report without mentioning any other reports from Dr. Wedemeyer around this time. Citing Dr. Wedemeyer's December 6 report, the ALJ wrote: "the medical record shows that the claimant reports only mild cognitive impairment and feels the benefit of her medication outweighs the side effects." AR 21. An ALJ is entitled to give greater weight to more recent opinions of a physician, but, in this case, the ALJ's selective reliance on this final progress note implies that Ms. Holmlund's pain is completely under control.
In his decision, the ALJ cited Ms. Holmlund's description of her daily activities to rebut her excess pain testimony:
AR 19. The ALJ stated further:
AR 22. Ms. Holmlund contends that she "has tried to present [herself] as `normal' as possible." Opp. 4:5-6. The Court construes this as arguing that Ms. Holmlund's daily activities are not clear and convincing reasons for rejecting her excess pain testimony. Because the ALJ listed Ms. Holmlund's daily activities without explaining how they were transferable to a work place setting, the Court finds that Ms. Holmlund's daily activities do not serve as clear and convincing reasons for rejecting Ms. Holmlund's excess pain testimony.
An individual's daily activities can be a clear and convincing reason for rejecting a claimant's testimony. "A claimant's performance of chores such as preparing meals, cleaning house, doing laundry, shopping, occasional childcare, and interacting with others has been considered sufficient to support an adverse credibility finding when performed for a substantial portion of the day." Lorigo v. Colvin, No. 1:13-cv-00405-SKO, 2014 U.S. Dist. LEXIS 54418, at *23-4 (E.D. Cal. Apr. 18, 2014); see, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (claimant has normal activities of daily living, including cooking, house cleaning, doing laundry, and helping her husband in managing finances, which suggest that claimant may still be capable of performing the basic demands of competitive, remunerative, unskilled work on a sustained basis); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (claimant's ability to perform various household chores was a specific reason for discounting claimant's testimony); Morgan v. Comm'r Soc. Sec, 169 F.3d 595, 600 (9th Cir. 1999) (the claimant's ability to fix meals, do laundry, work in the yard, and occasionally care for his friend's child evidenced claimant's ability to work); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (the fact that claimant could take care of her personal needs, prepare easy meals, do light housework, and shop for some groceries "was inconsistent with the presence of a condition which would preclude all work activity")
At the same time, however, disability claimants "need not vegetate in a dark room in order to be eligible for benefits." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (internal quotation marks omitted). The mere fact that a claimant can perform normal activities of daily living does not, by itself, prove adverse credibility. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The Ninth Circuit has "repeatedly warned that ALJ's must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day." Garrison v. Colvin, No. 12-15103, 2014 U.S. App. LEXIS 13315, at *54 (9th Cir. Jul. 14, 2014).
A claimant's daily activities must be transferrable to a work setting and performed for a substantial part of the claimant's day. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2001) ("Daily activities may be grounds for an adverse credibility finding `if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions.'" (quoting Fair, 885 F.2d at 603)); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (an adverse credibility finding based on activities may be proper "if a claimant engages in numerous daily activities involving skills that could be transferred to the workplace"). In Fair v. Bowen, for example, the court noted that light housekeeping, watching television, and riding public transportation are not easily transferable to a workplace "where it might be impossible to periodically rest or take medication." 885 F.2d at 603. In Edler v. Astrue, 391 Fed. Appx. 599, 601 (9th Cir. 2010), the court concluded that checking e-mail, playing computer games, watching television, learning to play the guitar and visiting a friend once a week "could in no way lead to a reasonable conclusion that [the claimant] does not suffer debilitating headaches on an average of one day a week." See also, Hurter v. Astrue, 465 F.App'x 648 (9th Cir. 2012) (ALJ should not have cited claimant's daily activities as a reason to discredit testimony when daily activities did not bear a meaningful relationship to workplace activities). "The ALJ must make `specific findings relating to the daily activities' and their transferability to conclude that claimant's daily activities warrant an adverse credibility determination." Orn, 495 F.3d at 639; see also Keifer v. Colvin, No. 12-06320EDL, 2014 U.S. Dist. LEXIS 61065, at *53 (N.D. Cal. May 2, 2014) (court remanded case to ALJ solely so that she can explain rationale in more detail when there was evidence that claimant's daily activities were inconsistent with her pain testimony).
In the instant case, Ms. Holmlund's daily activities cannot serve as clear and convincing reasons for rejecting her excess pain testimony unless the ALJ explains how her activities were transferable to a workplace setting. Ms. Holmlund's daily activities of cooking microwave meals, light cleaning, driving herself to physical therapy, and checking e-mail or Facebook do not preclude her from having symptoms of disabling pain. For example, Ms. Holmlund testified that when her pain is particularly troublesome, she prematurely stops her computer usage. AR 52. While Ms. Holmlund may be capable of performing her daily activities when she is not suffering from excess pain, and the ALJ should not have assumed based on this testimony that Ms. Holmlund could work when she did suffer from such pain.
In addition, the ALJ did not make a finding regarding whether Ms. Holmlund could perform her daily activities for a substantial part of her day. As mentioned above, Ms. Holmlund uses her computer to e-mail or Facebook two to three hours a day, four times a week. AR 48, 51. If this is truly the longest time Ms. Holmlund can spend on the computer without taking a break, she could not work a full eight hour day or forty hour work week. Moreover, the ALJ referred the one Christmas shopping trip Ms. Holmlund took with her mother to prove that she is not credible. AR 22. But the fact that Ms. Holmlund was capable of Christmas shopping for up to an hour, while periodically resting, proves little.
Accordingly, the purported inconsistencies between Ms. Holmlund's daily activities and her testimony do not serve as a specific, clear and convincing reasons for discrediting Ms. Holmlund's excess pain testimony.
In the second step of the disability determination, the ALJ found that Ms. Holmlund's major depressive disorder did not constitute a "severe" impairment. In making this determination, the ALJ severely discounted the assessments of two psychologists who examined and treated Ms. Holmlund — Drs. Balowitz and Garavanian. In their assessment, these psychologists found, inter alia, that Ms. Holmlund suffered from moderate depression; had diminished memory and concentration; was withdrawn, isolated, and irritable; and was unable to coach herself through painful episodes. Nonetheless, the ALJ found that it could not "afford Drs. Balowitz and Garavanian's opinion significant weight because they afford the maximum possible credibility to the claimant's subjective complaints of symptoms and functional limitations, which are inconsistent with the claimant's activities and other opinions." AR 17.
Insofar as the ALJ relied upon its adverse credibility determination to discount these assessments, this was improper. The ALJ may only reject the contradicted opinion by a treating or examining doctor
If on remand, the ALJ finds after reassessing the record, that Ms. Holmlund's subjective complaints are credible, he shall (1) reasses the weight afforded to all treating, examining, and consulting doctors and psychologists in this action and (2) determine anew whether Ms. Holmlund's mental impairments — either alone or in conjunction with her physical impairments — are "severe" and preclude her from working. See Burrow v. Barnhart, 224 F. App'x 613, 615 (9th Cir. 2007) (holding that the ALJ erred when it considered the claimant's physical and mental impairments separately at step two); see also Johnson v. Astrue, 303 F. App'x 543, 546 (9th Cir. 2008) (concluding that the ALJ did not err, because the ALJ "undertook the required analysis by considering the combined effects of impairments, including non-severe ones").
The Court may remand this case "either for additional evidence and findings or to award benefits." Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ's decision, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). In the instant case, the ALJ's decision is reversed and remanded for further proceedings. Remand is appropriate because the ALJ's ultimate disability determination relied heavily on his finding of adverse credibility. Without this finding, the ALJ's consideration of Ms. Holmlund's excess pain testimony and assessment of the opinion's of various practitioners may have been different
On remand, the ALJ is advised that further clarity in both his treatment of the record and articulation of his reasoning is required Boilerplate statements will not be sufficient — the Court expects the ALJ to not only highlight what he deems to be significant facts, but also to explain why he finds them to be significant. If the ALJ reaches a different conclusion as to credibility, he should reassess the medical testimony and ultimately re-determine the RFC and the question whether Ms. Holmlund is disabled.
This order disposes of Docket Nos. 28 and 36.
