Janice D. H. v. Saul

          MEMORANDUM OPINION AND ORDER

          ROZELLA A. OLIVER, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Janice D. H. (“Plaintiff”) challenges the Commissioner's denial of her application for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). For the reasons stated below, the decision of the Commissioner is REVERSED, and the matter is REMANDED.

         II. PROCEEDINGS BELOW

         On January 21, 2015, Plaintiff filed a Title II application for DIB alleging disability beginning on December 5, 2014. (Administrative Record (“AR”) 307-08.) One day later, Plaintiff filed an application for SSI alleging disability beginning on December 5, 2014. (AR 309-314.) Plaintiff's claims were denied on June 2, 2015. (AR 143-47.) Plaintiff filed a request for reconsideration on June 17, 2015, which was denied on August 14, 2015. (AR 147, 150.) On August 17, 2015, Plaintiff filed a written request for hearing, and a hearing was held on July 18, 2017. (AR 62-76, 156.) Represented by counsel, Plaintiff appeared and testified, along with an impartial vocational expert. (AR 62-76.) On August 16, 2017, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a disability, pursuant to the Social Security Act, ^[2] from December 5, 2014 through August 16, 2017, the date of the ALJ's decision. (AR 36-37.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on July 18, 2018. (AR 1.) Plaintiff filed this action on September 14, 2018. (Dkt. No. 1.)

         The ALJ followed a five-step sequential evaluation process to assess whether Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 5, 2014, the alleged onset date (“AOD”). (AR 26.) At step two, the ALJ found that Plaintiff had the following severe impairments: multiple sclerosis; myoligamentous strain of the cervical spine, lumbosacral spine, right shoulder, left shoulder, and bilateral knees; depression; and anxiety. (AR 26-27.) At step three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR 27.)

         Before proceeding to step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to:

[P]erform light work . . . except she can stand and/or walk for 6 hours in an 8 hour workday; sit for 6 hours in an 8-hour workday; occasionally climb, balance, stoop, kneel, crouch, crawl; occasionally reach[ ] in all directions with her left arm; can understand and remember tasks; can sustain concentration and persistence; can socially interact with the general public, co-workers, and supervisors; and, can adapt to workplace changes frequently enough to perform unskilled, low stress jobs that require simple instructions.

(AR 29.) At step four, based on Plaintiff's RFC and the vocational expert's testimony, the ALJ found that Plaintiff was unable to perform any past relevant work. (AR 35.) At step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (Id.) Accordingly, the ALJ determined that Plaintiff had not been under a disability from the AOD through the date of decision. (AR 35-37.)

         III. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. A court must affirm an ALJ's findings of fact if they are supported by substantial evidence and if the proper legal standards were applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial evidence requirement “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).

         “[T]he Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and internal quotation marks omitted). “‘Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 882 (“If the evidence can support either affirming or reversing the ALJ's conclusion, we may not substitute our judgment for that of the ALJ.”). The Court may review only “the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).

         IV. DISCUSSION

         Plaintiff raises the following issues for review: (1) whether new and material evidence submitted to the Appeals Council renders the ALJ's decision no longer supported by substantial evidence; and (2) whether the ALJ properly evaluated Plaintiff's subjective complaints. (See Plaintiff's Memorandum in Support of the Complaint (“Pl's Mem.”) 5, 8.) For the reasons below, the Court reverses and remands.

         A. The ALJ Properly Evaluated Plaintiff's Subjective Complaints^[3]

         Plaintiff argues that the ALJ failed to properly consider Plaintiff's subjective testimony. (Pl's Mem. 8-10; Plaintiff's Reply (“Pl's Reply”) 3-4.) The Commissioner disagrees. (Defendant's Memorandum in Support of Defendant's Answer (“Def's Mem.”) 4-11.)

         1. Plaintiff's Administrative Hearing Testimony

         Plaintiff testified that she has a tenth-grade education. (AR 65.) She is living with her daughter. (AR 72.) She receives 74 hours per month of in-home support services. (AR 73.) The in-home support care provider helps Plaintiff with bathing, combing hair, doing laundry, and going to the market. (AR 72-73.) Plaintiff does not go to the market. (Id.) Plaintiff will wash dishes “once in a while” but will take a break if there are too many dishes. (AR 72.) She watches television. (Id.) Plaintiff also attends her doctors' appointments. (Id.)

         Plaintiff testified that she cannot sit, stand, or walk for long periods of time and has limited use of her arms. (AR 66.) Plaintiff was prescribed a walker and has been using the walker for the past two years. (Id.) She attended the hearing with the walker. (Id.)

         Plaintiff suffers from pain in her mid and lower back. (AR 67.) On a good day, Plaintiff would be able to sit in a chair for 10 or 15 minutes before having to get up. (AR 67, 71.) Similarly, a good day would mean that Plaintiff is able to walk without her walker for 15 to 20 minutes. (Id.) She would only be able to stand for 15 to 20 minutes without her walker. (Id.) Plaintiff testified that she would be unable to stand or walk for longer periods of time with the use of the walker. (Id.)

         Plaintiff testified that she has back pain which causes pain to shoot down her right leg. (AR 67.) Her right leg “stays swollen as well.” (Id.) Plaintiff is unable to balance on either foot. (Id.) She cannot use stairs or ladders. (AR 68.) She is not able to kneel and stand back up. (Id.) Plaintiff also has pain in her left leg. (AR 70.) She cannot use her feet to step on controls like pedals or clutches without being in severe pain. (Id.)

         As to her arms, Plaintiff testified that she cannot reach over her head with her left arm, but she is able to reach forward with her left arm. (AR 68.) Plaintiff can lift a total of four pounds using both arms. (AR 69.) Plaintiff was prescribed Norco to help manage her pain. (AR 72.) In addition, Plaintiff was referred to physical therapy on three occasions. (Id.)

         Plaintiff also uses a heat pad for pain relief. (Id.) Plaintiff also suffers from anxiety and depression. (AR 69.) Plaintiff testified that she has “crying spells, ” where she just cries because she feels useless. (Id.) The crying spells can last two seconds, or they can last all day. (Id.) She has medication that she takes for body pain and mental health, however, the medication has side effects of drowsiness, dizziness, and diarrhea. (AR 70.)

         2. Plaintiff's Function Report

         Plaintiff submitted a Function Report in February 2015. (AR 385-93.) Plaintiff explained that she cannot sit up for longer than 10 minutes without experiencing pain or discomfort. (AR 385.) Plaintiff experiences high blood pressure when she stands up, causing her head to hurt. (Id.) She is unable to lift her arm. (Id.) Plaintiff also noted that her “legs give out” causing her to fall. (Id.) Lastly, Plaintiff states that she has cancer which causes her to be tired and makes it difficult for her to breathe when she is walking. (Id.)

         On the days that Plaintiff is able to get out of bed, she cooks, goes to the store, cleans, and showers. (AR 386.) Plaintiff can feed herself. (Id.) On the days that she can cook she will make sandwiches, complete meals, or will heat up a frozen dinner. (AR 387.) Plaintiff sometimes experiences difficulty lifting her leg to put on pants, lifting her arms to comb her hair, and getting in and out of the bathtub. (AR 386.) She sometimes needs help to sit on the toilet. (Id.) Plaintiff needs either a timer or someone to remind her to take her medication. (AR 387.) Plaintiff provides care for her daughter. (AR 386.) She takes her to school, does her laundry, and cooks for her. (Id.) Plaintiff states that she is always in some type of pain. (AR 392.)

         If Plaintiff wakes up and is not in pain, she will complete all household chores or will try to complete as much as possible before the pain makes her sit down. (AR 387.) It takes her approximately six hours to complete but she finds that she needs help or encouragement to complete. (Id.) Plaintiff explains that if she is unable to do housework it is because the work strains her back. (AR 388.)

         Plaintiff goes outside about once a week. (AR 388.) She drives. (Id.) However, Plaintiff does not go out alone because she fears that she will fall or that her legs will “go out on” her. (Id.) Plaintiff goes shopping for food three times a month. (Id.) Each trip takes two hours. (Id.) She can pay bills, count change, handle a savings account, and use a checkbook or money orders. (Id.) Plaintiff enjoys swimming, reading, and playing video games. (AR 389.) She does these activities twice a week. (Id.) However, if she is in pain from sitting, she cannot play video games. (Id.) She talks on the phone daily but does not go anywhere. (Id.) She does not like other people seeing that she is unable to walk. (AR 390.)

         Plaintiff's condition affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, concentrate, remember, understand, follow instruction, use hands, and get along with others. (AR 390.) Plaintiff can walk a quarter of a mile before needing to rest 10 minutes. (Id.) She is unable to finish what she starts. (Id.) She can follow written instructions very well but is unable to follow verbal instructions because she gets confused. (Id.) She does not get along well with authority figures and does not handle changes in her routine or stress well. (AR 391.) Plaintiff also has a fear of falling and a fear of dropping dead at any moment. (Id.)

         3. Third Party Function Report

         On February 16, 2015, Plaintiff's friend, William Caldwell, submitted a function report regarding Plaintiff's abilities. (AR 357-65.) At that time, he had known Plaintiff for five years and explained that they spent a lot of time together. (AR 357.) He describes that Plaintiff is unable to walk or sit up for long periods of time and that she spends her days complaining about the pain. (AR 357-58.) Plaintiff will also “half clean the kitchen.” (AR 358.) Plaintiff takes care of her child. (Id.) Mr. Caldwell states that prior to her illness, Plaintiff was able to do “everything needed for daily living.” (Id.) According to Mr. Caldwell, Plaintiff's conditions affect her sleep because she “toss[es] and turn[s] all night.” (Id.) He also states that he helps Plaintiff to dress, helps her in and out of the tub, and that she sometimes needs help onto and off the toilet seat. (Id. ) He notes that Plaintiff does not need to be reminded to take care of her personal needs, but that he “constantly” has to tell Plaintiff to take her medication. (AR 359.) She also needs to be reminded to go to the doctor and needs someone to accompany her. (AR 361.)

         Mr. Caldwell explains that Plaintiff's cooking habits have changed since the onset of her conditions but noted that she still prepares meals daily. (AR 359.) It takes Plaintiff four hours to prepare meals. (Id.) According to Mr. Caldwell, Plaintiff does not do any household chores because she is always in pain and cannot finish. (AR 359-60.) Plaintiff needs encouragement and help to do household chores. (AR 360.) He states that Plaintiff goes outside once or twice per week, but she cannot go alone because “she falls sometimes.” (Id.) Plaintiff can drive. (Id.) She shops for food in stores four or five times per month. (Id.) Plaintiff's ability to handle money has not changed since her conditions began and she can pay bills, count change, handle a savings account, and use a checkbook. (AR 360-61.) Plaintiff plays video games, but not often. (AR 361.) Plaintiff is in “bed most of the time.” (Id.) Mr. Caldwell notes that since Plaintiff started falling, she does not act the same. (AR 364.) Plaintiff is “snappy.” (AR 363.) Plaintiff complains about headaches and pain throughout her body. (AR 364.)

         As to Plaintiff's social activities, Mr. Caldwell states that Plaintiff uses Facebook every day. (AR 361.) Plaintiff has problems getting along with others because she believes that everyone is “out to get her.” (AR 362.) Mr. Caldwell informs that there have been no changes to Plaintiff's social activities since her conditions began. (Id.) Plaintiff does not get along well with authority figures. (AR 363.) She was terminated from her job with Agency One Insurance because of problems getting along with other people. (Id.) She does not trust ...