1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 BRYANT J., ) Case No. CV 19-07063-PJW ) 11 Plaintiff, ) ) MEMORANDUM OPINION AND ORDER 12 v. ) ) 13 ANDREW M. SAUL, )

COMMISSIONER OF THE )

14 SOCIAL SECURITY ADMINISTRATION, ) ) 15 Defendant. ) ) 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying his application for Disability 21 Insurance Benefits (“DIB”). He contends that the Administrative Law 22 Judge (“ALJ”) erred when he (1) determined that Plaintiff could 23 perform the occupations identified by the vocational expert at step 24 five; (2) failed to properly evaluate his subjective symptom 25 testimony; and (3) failed to properly consider the lay witness 26 evidence. For the reasons explained below, the ALJ’s decision is 27 reversed and the case is remanded to the Agency for further 28 proceedings consistent with this opinion. 1 II. 2 SUMMARY OF PROCEEDINGS 3 In February 2017, Plaintiff applied for DIB, alleging that he had 4 been disabled since August 6, 2006, due to severe PTSD, traumatic 5 brain injury, orthopedic injury (hand), back injury, neurological 6 injury (severe migraines), severe anxiety, depression, short term 7 memory loss, long term memory loss, and chronic urticaria. 8 (Administrative Record (“AR”) 253-54, 325.) His application was 9 denied and he requested and was granted a hearing before an ALJ. (AR 10 87-101, 129-30.) Following a hearing in November 2017, the ALJ issued 11 a decision, finding that Plaintiff was not disabled. (AR 60-86, 105- 12 13.) Plaintiff appealed to the Appeals Council, which found error in 13 the ALJ’s decision, vacated the decision, and remanded for further 14 administrative proceedings.1 (AR 118-21, 189-90.) Thereafter, a 15 second hearing was held in January 2019 and the ALJ issued a decision 16 finding that Plaintiff was not disabled. (AR 15-28, 34-59.) 17 Plaintiff appealed to the Appeals Council, which denied review. (AR 18 1-6, 249-52.) This action followed. 19 III. 20 ANALYSIS 21 A. Plaintiff’s Testimony 22 Plaintiff contends that the ALJ erred in rejecting his testimony. 23 (Joint Stipulation (“JS”) at 23-31.) For the following reasons, the 24 Court agrees. 25 26 27 1 The Appeals Council remanded for failure to address or weigh the medical source statement completed by Sue Tin, PMHNP-BL. (AR 28 119.) 2 1 At the first hearing in 2017, Plaintiff testified that he cannot 2 work because he goes to medical appointments multiple times during the 3 week for “PTSD and headaches and all that” and because of his 4 injuries. (AR 68.) He stated that he stays at home “all the time,” 5 watching television or spending time in the backyard with his dog. 6 (AR 72.) “Every once in a while,” he goes to the movies with his 7 girlfriend. (AR 74.) He had been walking on the beach for about a 8 mile until a couple of months before. (AR 72.) The VA recently gave 9 him a recumbent bike to ride, and he does Tai Chi every Friday. (AR 10 72-73.) He can go grocery shopping with his girlfriend, but then goes 11 to sit down because he does not like shopping. (AR 74.) He does “a 12 lot of events” with the Wounded Warrior Project, such as a soldier 13 ride and a couples project Odyssey that “helps with couples and their 14 relationships.” (AR 74-75.) His girlfriend usually takes him to his 15 appointments, but he sometimes goes by himself. (AR 82.) He can 16 drive a car, pump gas, and check the oil and the tire pressure. (AR 17 82.) He can dress himself. (AR 82.) 18 At the second hearing in 2019, Plaintiff testified that he and 19 his girlfriend broke up about a year before and he was staying with 20 his brother and sister-in-law. (AR 37-38, 52.) He spends time at 21 home “doing nothing.” (AR 44.) He goes to medical appointments, does 22 Tai Chi, and rides his recumbent bike. (AR 44.) He used to attend 23 Wounded Warrior events, but he has not attended in a while. (AR 44.) 24 He walks with his dog “a little bit.” (AR 46.) He uses a cane when 25 his back hurts, hip hurts, or when he gets light-headed. (AR 45.) He 26 does not use the computer a lot; he sometimes gets frustrated “really 27 quick” using it. (AR 50-51.) He uses a credit card and debit card, 28 although he “always loses [his] debit card.” (AR 52.) His ex- 3 1 girlfriend used to help him “a lot.” (AR 52.) Without her, he misses 2 appointments because he cannot manage them. (AR 52.) He added that 3 he cannot work because he gets irritated with people, including his 4 own father when he was sick. (AR 54.) 5 In a Function Report, Plaintiff stated that he “hate[s] being 6 around crowds, noises.” (AR 342.) He described his daily activities 7 as taking medication, watching the news, showering, eating, relaxing 8 with his dog, browsing the internet, watching movies, and sleeping 9 late at night. (AR 343.) He can prepare snacks, do a little ironing, 10 make the bed, and sweep. (AR 344.) He also sits out on the porch, 11 takes short walks, and makes short visits to stores due to his back 12 issues, anxiety, temper and PTSD. (AR 345.) He spends time with his 13 girlfriend, attends Wounded Warrior events, and watches movies “all 14 the time,” and has become “non social.” (AR 346-47.) 15 The ALJ discounted this testimony, concluding: (1) Plaintiff’s 16 subjective allegations “are not entirely consistent with the medical 17 evidence and other evidence in the record;” and (2) Plaintiff’s 18 activities of daily living appear “compatible with the ability to 19 sustain the work activities within the confines of the [RFC].” (AR 20 22-26.) Generally speaking, these are valid reasons for questioning a 21 claimant’s testimony. See Rollins v. Massanari, 261 F.3d 853, 857 22 (9th Cir. 2001) (noting ALJ can consider objective medical evidence in 23 determining credibility of claimant); Orn v. Astrue, 495 F.3d 625, 639 24 (9th Cir. 2007) (holding ALJ can consider claimant’s ability to 25 perform daily activities in assessing his credibility). Here, 26 however, the ALJ erred in relying on these reasons. 27 According to the ALJ, Plaintiff’s activities of daily living 28 appear compatible with the ability to work. (AR 26.) The ALJ noted 4 1 that despite Plaintiff’s claims that he spends all day at home doing 2 little, the record indicates that he has the ability to watch 3 television, use the computer, watch YouTube, use social media, feed 4 pets, shop in stores, do Tai Chi and ride a recumbent bike, take walks 5 with his daughter, attend Wounded Warrior events (e.g., dinners, 6 games, and ski events), drive a car, and use a debit card. (AR 26, 7 44, 1508.) In addition, the ALJ noted that there is no indication 8 that Plaintiff has relied upon anyone for his personal care since 9 separating from his girlfriend. (AR 26.) 10 The ALJ’s finding that Plaintiff’s activities show he can work is 11 not supported by substantial evidence. The ALJ failed to explain how 12 the limited range of activity Plaintiff testified he could perform at 13 home undermined his testimony, including his testimony that he spends 14 all day at home doing little. See Orn, 495 F.3d at 639 (“The ALJ must 15 make specific findings relating to the daily activities and their 16 transferability to conclude that a claimant’s daily activities warrant 17 an adverse credibility determination”) (internal quotation marks 18 omitted). 19 Further, Plaintiff’s limited activities outside the home, such as 20 shopping in short spurts, taking walks, doing Tai Chi once a week, 21 riding a recumbent bike with other injured Vets, and attending Wounded 22 Warrior events that help him deal with his PTSD, only marginally 23 suggest that he could do more than he claimed. See Arthur v. Saul, 24 2020 WL 1017906, at *8 (D. Nev. Feb. 14, 2020) (“The fact that 25 [claimant] is able to walk his dog, swim once a week, and participate 26 in Wounded Warrior and associated events does not mean [claimant] is 27 able to perform full-time work and [claimant] should not be penalized 28 for attempting to lead a normal life despite his PTSD diagnosis.”) 5 1 (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). For 2 one thing, Plaintiff appears to have performed these activities in 3 short intervals and not every day, which falls short of what is needed 4 to demonstrate the capacity to perform work on a sustained basis. See 5 Reddick, 157 F.3d at 722 (“Only if [claimant’s] level of activity were 6 inconsistent with [c]laimant’s claimed limitations would these 7 activities have any bearing on [c]laimant’s credibility.”). For 8 another, the Tai Chi, recumbent bike, and Wounded Warrior events were 9 part of his veteran’s occupational therapy in a controlled environment 10 to explore alternate means of relaxation and movement. (AR 1438-39, 11 1445, 1490.) Further, to the extent the ALJ discounted Plaintiff’s 12 testimony because he found “no indication that [Plaintiff] has relied 13 upon anyone for his personal care since separating from his 14 girlfriend,” he mischaracterized the record. See Regennitter v. 15 Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999) 16 (finding that ALJ’s reason for discounting testimony was “inaccurate” 17 where he mischaracterized Plaintiff’s testimony underlying that 18 reason). Although Plaintiff may not be able to rely on his ex- 19 girlfriend for help anymore, the record suggests that his ability to 20 function without her help has been diminished. For example, Plaintiff 21 testified that he has problems managing his money and keeping his 22 medical appointments because his ex-girlfriend no longer helps him. 23 (AR 45-46, 52.) 24 The Agency argues that the ALJ is not required to equate 25 Plaintiff’s daily activities to full-time work. (JS at 33) (citing 26 Chipman v. Berryhill, 765 F. App’x 264, 265 (9th Cir. 2019) (mem.) 27 (“In relying on [claimant’s] daily activities as grounds for 28 discounting her testimony, the ALJ was not required to find those 6 1 activities were comparable to activities performed during full-time 2 working.”)). In Chipman, the Ninth Circuit explained that an ALJ 3 “‘may discredit a claimant’s testimony when the claimant reports 4 participation in everyday activities indicating capacities that are 5 transferable to a work setting’” or “‘to the extent that they 6 contradict claims of a totally debilitating impairment,’ even if 7 ‘those activities suggest some difficulty functioning.’” Chipman, 765 8 F. App’x at 265 (quoting Molina v. Astrue, 674 F.3d 1104, 1113 (9th 9 Cir. 2012)). Here, however, the ALJ did not show either that 10 Plaintiff’s daily activities were transferable to a work setting or 11 that his activities contradicted his claims that he could not work due 12 to his alleged impairments. Therefore, the ALJ’s decision to discount 13 Plaintiff’s testimony based on his daily activities is rejected. 14 The ALJ’s remaining reason for discounting Plaintiff’s subjective 15 symptom testimony--that his allegations were inconsistent with the 16 objective medical evidence--cannot by itself sustain the ALJ’s 17 conclusion as to Plaintiff’s subjective symptom testimony. See 18 Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017), as amended 19 September 14, 2017 (“A]n ALJ ‘may not disregard [a claimant’s 20 testimony] solely because it is not substantiated affirmatively by 21 objective medical evidence.’”) (citation omitted). 22 In sum, the ALJ did not give clear and convincing reasons, 23 supported by substantial evidence, for discounting Plaintiff’s 24 subjective symptom testimony. Accordingly, remand is warranted on 25 this issue. 26 27 28 7 1 B. Lay Witness Testimony 2 Plaintiff contends that the ALJ erred in failing to provide 3 germane reasons for rejecting the of Plaintiff’s former girlfriend. 4 (JS at 33-36.) For the reasons stated below, the Court agrees. 5 An ALJ is required to consider lay witness “testimony,” which 6 includes not only live testimony at the administrative hearing but 7 also written submissions, and may only reject it for reasons that are 8 “germane” to the witness. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 9 1050, 1053 (9th Cir. 2006). 10 Plaintiff’s former girlfriend described him as having extreme 11 back pain, short-term memory loss, extreme PTSD that makes it 12 difficult for him to be around crowds, and severe migraines. (AR 334, 13 338.) She described Plaintiff’s PTSD as causing nightmares. (AR 14 335.) She further explained that Plaintiff needs reminders of his 15 appointments and other events and he does not prepare meals or pay 16 bills due to forgetfulness. (AR 336-37.) Plaintiff spends most of 17 his time with her, watching television and attending Wounded Warrior 18 events once a month. (AR 338.) Plaintiff becomes easily irritated 19 and anxious around others and has problems dealing with stress. (AR 20 339, 348.) He generally keeps isolated. (AR 340.) 21 The ALJ discussed this testimony, but did not give any reasons 22 for rejecting it. (AR 21-22.) This was error. 23 The Agency acknowledges that the ALJ did not specifically reject 24 the lay witness testimony, but points out that the ALJ noted it was 25 similar to Plaintiff’s testimony. (JS at 36.) The Agency argues, 26 therefore, that the ALJ applied the same rationale for rejecting 27 Plaintiff’s testimony to the lay witness testimony. (JS at 36.) But 28 the Court has remanded the issue of Plaintiff’s testimony to the ALJ. 8 1 Thus, the Agency’s argument that the Court should uphold the 2 ALJ’s rejection of the lay witness testimony for the same reasons it 3 is upholding the rejection of Plaintiff’s testimony necessarily fails. 4 On remand, the ALJ should consider the lay witness testimony and, if 5 applicable, provide germane reasons for discounting it. 6 C. The ALJ’s Finding at Step Five 7 Plaintiff contends that the ALJ also erred in determining that 8 Plaintiff could work. (JS at 5-16.) In light of the fact that the 9 Court is remanding for the reasons set forth above, the ALJ will have 10 to reconsider this issue on remand.2 11 IV. 12 CONCLUSION 13 For the reasons set forth above, the Agency’s decision is 14 reversed and the action is remanded for further consideration 15 consistent with this Memorandum Opinion and Order. 16 IT IS SO ORDERED. 17 DATED:__A_u_g_u_s_t_ _1_9_,_ _2_0_2_0. 18 19

PATRICK J. WALSH

20 UNITED STATES MAGISTRATE JUDGE 21 22 O:\PJW\ECF Ready\Bryant J Memo Opinion (19-7063).wpd 23 24 2 Plaintiff has requested that the case be remanded for an award of benefits. (JS at 37.) The Court recognizes that it has the 25 authority to do so but finds that such relief is not warranted here 26 because it is not clear that Plaintiff is disabled. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5, 2016) 27 (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a 28 direction to provide benefits.”). 9