The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
The Court now rules as follows with respect to the two disputed issues listed in the Joint Stipulation.*fn1
1. The Court is unable to affirm the adverse credibility determination by the Administrative Law Judge ("ALJ").
The first disputed issue is directed to the ALJ's rejection of plaintiff's As the Court advised the parties in its Case Management Order, the subjective symptom testimony.
As a preliminary matter, the Court notes that it is unclear from the Commissioner's portion of the Joint Stipulation whether the Commissioner is applying the correct standard of review to the ALJ's adverse credibility determination. The law is well established in the Ninth Circuit that, where the claimant has produced objective medical evidence of an impairment or impairments that could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See, e.g., Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).
Here, after summarizing plaintiff's subjective symptoms, the ALJ expressly found as follows: "After considering the evidence of record, I find that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms." (See AR 17.) Since the ALJ did not find that the record here contained any affirmative evidence of malingering, the issue before the Court is whether the ALJ provided reasons for his adverse credibility determination that satisfy the "clear and convincing" standard set forth above.
The Commissioner disputes that plaintiff's declination of chemotherapy for her cancer was the basis for the ALJ's credibility finding, calling that contention a "red herring" based on the evidence of record that plaintiff had not tested positive of cancer since her December 2003 surgery, and that her surgeon and oncologist had opined that she did not have any functional limitations from her cancer that lasted or were expected to last for 12 months or more. (See Jt Stip at 5.) However, the ALJ did state, "In summary, the claimant is not fully credible, primarily because she refuses several treatment options." (See AR 19 (emphasis added).) The treatment options to which the ALJ was referring were (a) a hysterectomy to address plaintiff's uterine fibroids, and (b) chemotherapy for her cancer. (See AR 18.) Based on the same evidence cited by the Commissioner in support of his "red herring" contention, the Court finds that, insofar as the ALJ was referring to plaintiff's declination of chemotherapy, the ALJ's "primary" reason for not crediting plaintiff's subjective testimony does not satisfy the "clear and convincing" standard. As for plaintiff's declination of the hysterectomy recommendation, the Court notes that the same medical records cited by the ALJ regarding this issue evidence that the reason for plaintiff's declination was that her oncologist had recommended against the surgery. (See AR 665, 666.) Accordingly, the Court further finds that, insofar as the ALJ was referring to plaintiff's declination of the hysterectomy recommendation, the ALJ's "primary" reason for not crediting plaintiff's subjective testimony also does not satisfy the "clear and convincing" standard.
To the extent that the ALJ was basing his adverse credibility determination on plaintiff's testimony regarding her daily activities (see AR 17), the Court notes that "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. One does not need to be 'utterly incapacitated' in order to be disabled." Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001): see also, e.g., Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, . . . and many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication."). The Ninth Circuit also has held that daily activities may not be relied upon to support an adverse credibility determination unless the ALJ makes an explicit finding to the effect that plaintiff's ability to perform those activities translated into the ability to perform appropriate work activities on an ongoing and daily basis. See Gonzalez v. Sullivan, 914 F.3d 1197, 1201 (9th Cir. 1990). Here, the ALJ made no such explicit finding. Moreover, as the ALJ acknowledged, plaintiff also testified that, if she has a "bad day," she has to rest for about an hour and a half before going back to her chores, and she estimated that she has three or four "bad days" per week. (See AR 17, 47, 49.) Thus, even if the ALJ had made an explicit finding that plaintiff's ability to perform daily activities translated into the ability to perform appropriate work activities on an ongoing and daily basis, the Court would have been compelled to find that such finding was not supported by plaintiff's testimony. For the foregoing reasons, the Court finds that plaintiff's testimony about her daily activities does not constitute a "clear and convincing" reason for rejecting her subjective symptom testimony.
For the reasons stated by plaintiff (see Jt Stip at 12-13), the Court finds that plaintiff's abbreviated testimony about applying for jobs also does not constitute a "clear and convincing" reason for rejecting her subjective symptom testimony.
Further, the Court concurs with plaintiff that the fact she managed to go on a two-day Mexican cruise also does not constitute a "clear and convincing" reason for rejecting her subjective symptom testimony.
Finally, it is inexplicable to the Court why, with knowledge that just a couple of months earlier one of plaintiff's treating physicians had opined that systemic lupus erythematosus (SLE) needed to be ruled out and that plaintiff had an upcoming appointment with a rheumatologist (see AR 15), the ALJ rejected plaintiff's subjective symptom testimony without waiting for the results of the rheumatology examination. The law is well established in this Circuit that the ALJ has a special duty in social security cases "to fully and fairly develop the record and to assure the claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). "This duty exists even when the claimant is represented by counsel." Id. The ALJ's failure to fulfill this duty here is another reason why the Court is unable to affirm the ALJ's adverse credibility determination.
2. The Court is unable to affirm the ALJ's rejection of the opinions of Drs. Li and Hu.
The second disputed issue is directed to the ALJ rejection of the opinions of two of plaintiff's physicians, Drs. Li and Hu.
As the ALJ acknowledged, if the opinion of Dr. Li, as reflected on the medical questionnaire form that Dr. Li completed on August 4, 2008 (see AR 688-91), were credited, plaintiff would be unable to work full time and would be unable to perform her past relevant work. (See AR 18.) The ALJ's stated rationale for not according Dr. Li's opinion "enhanced weight" was that he had only found documentation in the medical records that Dr. Li had once written a prescription for plaintiff (citing AR 234), and no evidence that Dr. Li had ever examined her; that Dr. Li's assessment therefore was "apparently" based on her review of the medical record; and that the ALJ accordingly found that Dr. Li had failed to "demonstrate such an intimate familiarity with the claimant that her opinion would be entitled to enhanced weight." ...