United States District Court, W.D. Washington, Seattle
JOHN J. CLEMENT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
A. TSUCHIDA United States Magistrate Judge
Clement appeals the ALJ's decision. The ALJ found mild to
moderate lumbar degenerative disc disease, bipolar disorder,
and schizoaffective disorder are severe impairments; Mr.
Clement has the residual functional capacity
(“RFC”) to perform light work with additional
non-exertional limitations; and that can perform jobs in the
national economy. Tr. 27-32.
Clements argues the Court should remand the case for further
proceedings because the ALJ misevaluated his testimony, and
because evidence he submitted to the Appeals Council
undermines the ALJ's decision. Dkt. 13 at 1, 14. For the
reasons below the Court REVERSES the
Commissioner's final decision and
REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
A. Mr. Clement's Testimony
did not find malingering and was therefore required to
provide clear and convincing reasons to reject Mr.
Clement's testimony. Smolen v. Chater, 80 F.3d
1273, 1283-84 (9th Cir. 1996). The ALJ found Mr.
Clement's testimony is inconsistent with the medical
record. Tr. 29-30. The ALJ noted examining doctor Ryan
Bennett, M.D., opined Mr. Clement could lift and carry 50
pounds occasionally, and 25 pounds frequently; he could push
and pull on a frequent basis; he had no standing, walking or
sitting restrictions; he could bend, crouch, stoop, and crawl
frequently and he had no manipulative activity limitations.
Tr. 30 (citing Tr. 216). The ALJ also noted examining doctor
Bong Doan, M.D., opined Mr. Clement can perform simple and
complex tasks, can complete a normal workweek; and has mild
difficulties in handling stress. Tr. 30.
these opinions stand in stark contrast to Mr. Clement's
claims they are not a basis to reject Mr.
Clement's testimony because the ALJ rejected the medical
opinions giving them “little if any weight, ” and
instead finding Mr. Clement has “greater limitations
than offered by these doctor.” Tr. 31. It is
unreasonable to reject a claimant's testimony based upon
medical evidence the ALJ did not put any stock in.
also found Mr. Clement did not receive the kind of
“medical treatment one would expect a totally for a
totally disabled person.” Tr. 31. This is an erroneous
conclusory finding. Generalized, conclusory findings do not
suffice. See Moisa v. Barnhart, 367 F.3d 882, 885
(9th Cir.2004) (the ALJ's credibility findings
“must be sufficiently specific to allow a reviewing
court to conclude the ALJ rejected the claimant's
testimony on permissible grounds and did not arbitrarily
discredit the claimant's testimony”) (internal
citations and quotations omitted); Holohan v.
Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ
must “specifically identify the testimony [the ALJ]
finds not to be credible and must explain what evidence
undermines the testimony”).
Commissioner defends the ALJ's determination arguing the
ALJ's finding is valid because Mr. Clement received only
conservative care, Mr. Clement's medications stabilized
or improved his symptoms, and Mr. Clement did not
consistently seek treatment and did not comply with his
medications. Dkt. 14 at 4-5. The Court rejects these
arguments. The ALJ did not explain why the care Mr. Clement
received was conservative. Absent any explanation, the
ALJ's conclusory statement that Mr. Clement did not
receive the kind of treatment one expects a disabled person
to receive is neither clear nor convincing.
also found Mr. Clement had “good compliance” with
prescribed medications, Tr. 30, not failure to comply as the
Commissioner argues. The Commissioner's defense does not
track the ALJ's reasoning. The ALJ found when Mr. Clement
took his medication he reported doing “good and
well.” Id. However, in assessing mental health
issues, the ALJ cannot reject a claimant's testimony
where the symptoms wax and wane in the course of treatment.
Cycles of improvement and debilitating symptoms a typical in
mental health cases, and an ALJ cannot simply focus on
instances of improvement to conclude a claimant is capable of
working. Garrison v. Colvin, 759 F.3d 995, 1017 (9th
Cir. 2014). It may be true Mr. Clement functions better on
medication than when he is off medications. But the record
does not establish that with medications, he is free and
clear of significant functional limitations. This is
evidenced by the treatment records Mr. Clement submitted
after the ALJ issued his decision which note Mr. Clement was
taking “Lithium” but “continues to have
insomnia, mood swings and could benefit from added
stabilization with atypical antipsychotic.” Tr. 262.
And lastly the Court rejects the argument the ALJ properly
discounted Mr. Clement's testimony because he did not
consistently seek treatment because “it is a
questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking
rehabilitation.” Nguyen v. Chater, 100 F.3d
1462, 1465 (9th Cir.1996) (citations and quotations omitted).
also rejected Mr. Clement's testimony as inconsistent
with his activities of daily living. Tr. 30. The ALJ noted
Mr. Clement can make meals, do laundry, bath, shop, go out
alone, has some good relations with his family and relies on
them for transportation. Id. The Ninth Circuit has
repeatedly asserted the mere fact that a plaintiff has
carried on certain daily activities does not in any way
detract from his credibility as to his overall disability.
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007
(quoting Vertigan v. Halter, 260 F.3d 1044, 1050
(9th Cir. 2001)). Daily activities that are transferrable to
a work setting may be grounds for an adverse credibility
finding. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989). But daily activities that do not contradict a
claimant's other testimony or meet the threshold for
transferrable work skills cannot form the basis of an adverse
credibility determination. Orn, 495 F.3d at 639.
Here the Commissioner does not argue Mr. Clement's
activities are transferrable to a work setting, because they
plainly are not. Additionally none of the activities
contradict Mr. Clement's statements but rather, as the
Commissioner notes, are consistent with what Mr. Clement told
the examining doctors. Dkt. 14 at 5. In short the ALJ
improperly penalized Mr. Clement for attempting to live a
normal life in the face of his limitations. See Cooper v.
Bowen, 815 F.2d 557, 561 (9th Cir. 1987).
further found Mr. Clement made inconsistent statements about
his work history. The Commissioner does not defend this
ground. The ALJ found Mr. Clement submitted a disability
report to the Agency indicating he had never worked and also
submitted a work history report listing four jobs he held
between 2003 and 2005. Tr. 30 (referring to Tr. 152, 158.).
Substantial evidence does not support the ALJ's finding
because the disability report is unsigned and undated, and
Mr. Clement argued to the Appeals Council “[the
disability report] was not completed by Mr. Clement . .
.” Tr. 203. As the ALJ pointed to no evidence
establishing Mr. Clement actually completed the disability
report, and given his claim he did not, substantial evidence
does not support the ALJ's determination.
lastly the ALJ found Mr. Clement's work activity after
the alleged onset date was inconsistent with his claim he is
disabled. Tr. 30-31. However, the fact a claimant tries to
work and fails is not a basis to discount his testimony about
the severity of his symptoms. Lingenfelter v. Astrue
, 504 F.3d 1028, 1038 (9th Cir. 2007). To the contrary failed
attempts to work tend to support a claimant's claims that
he or she is disabled. See Fair v. Bowen, 885 F.2d
597, 604 (9th Cir. 1989). Here, Mr. Clement earned $1, 703.58
in the three years between 2012 and 2014, which is indicative
of failed attempts to work rather than work activity
consistent with the ability to perform substantial gainful
Evidence Presented to ...