THOMAS H. HUNTER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Case No. CV 14-02269-JEM
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 10, 2014
THOMAS H. HUNTER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Case No. CV 14-02269-JEM
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 10, 2014
MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
On March 28, 2014, Thomas H. Hunter ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's applications for Social Security Disability and Disability Insurance benefits and for Supplemental Security Income ("SSI") benefits. The Commissioner filed an Answer on July 14, 2014. On October 22, 2014, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.
Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision must be reversed and this
case remanded for further proceedings in accordance with this Memorandum Opinion and Order and with law.
Plaintiff Thomas H. Hunter is a 42-year-old male who applied for Social Security Disability and Disability Insurance benefits on November 29, 2011 and Supplemental Security Income benefits on December 12, 2011, alleging disability beginning October 1, 2008. (AR 11. ) The ALJ determined that Plaintiff has not engaged in substantial gainful activity since October 1, 2008, the alleged onset date. (AR 13. )
Plaintiff's claims were denied initially on May 31, 2012. (AR 20. ) Plaintiff filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") Robert S. Eisman on July 18, 2013 (AR 11), in Norwalk, California. Claimant appeared and testified at the hearing and was represented by counsel. (AR 11. ) Vocational expert ("VE") Joseph H. Torres also appeared and testified at the hearing. (AR 11. )
The ALJ issued an unfavorable decision on August 1, 2013. (AR 11-21. ) The Appeals Council denied review on January 31, 2014. (AR 1-3. )
As reflected in the Joint Stipulation, Plaintiff only raises the following disputed issue as a ground for reversal and remand:
1. Whether the ALJ properly considered Thomas Hunter's subjective symptom testimony.
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and free of legal error. Smolen v. Chater 80 F. 3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).
Substantial evidence means "'more than a mere scintilla, ' but less than a preponderance. " Saelee v. Chater 94 F. 3d 520, 521-22 (9th Cir. 1996) (quoting
Richardson v. Perales 402 U.S. 389, 401 (1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. " Richardson 402 U.S. at 401 (internal quotation marks and citation omitted).
This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin. 466 F. 3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r of the Soc. Sec. Admin. 169 F. 3d 595, 599 (9th Cir. 1999). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence. '" Robbins 466 F. 3d at 882 (quoting Hammock v. Bowen 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue 495 F. 3d 625, 630 (9th Cir. 2007).
The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months. " 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to determine whether a claimant is disabled. 20 C. F. R. §§ 404. 1520, 416. 920.
The first step is to determine whether the claimant is presently engaging in substantial gainful activity. Parra v. Astrue 481 F. 3d 742, 746 (9th Cir. 2007). If the claimant is engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or combination of impairments. Parra 481 F. 3d at 746. An impairment is not severe if it does not significantly limit the claimant's ability to work. Smolen 80 F. 3d at 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C. F. R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra 481 F. 3d at 746. If the impairment meets or equals one of the
listed impairments, the claimant is presumptively disabled. Bowen 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant from doing past relevant work. Pinto v. Massanari 249 F. 3d 840, 844-45 (9th Cir. 2001). Before making the step four determination, the ALJ first must determine the claimant's residual functional capacity ("RFC"). 20 C. F. R. § 416. 920(e). The RFC is "the most one can still do despite his or her limitations" and represents an assessment "based on all the relevant evidence. " 20 C. F. R. §§ 404. 1545(a)(1), 416. 945(a)(1). The RFC must consider all of the claimant's impairments, including those that are not severe. 20 C. F. R. §§ 416. 920(e), 416. 945(a)(2); Social Security Ruling ("SSR") 96-8p.
If the claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel 216 F. 3d 864, 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the general rule that at all times the burden is on the claimant to establish his or her entitlement to benefits. Parra 481 F. 3d at 746. Once this prima facie case is established by the claimant, the burden shifts to the Commissioner to show that the claimant may perform other gainful activity. Lounsburry v. Barnhart 468 F. 3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not disabled at step five, the Commissioner must provide evidence demonstrating that other work exists in significant numbers in the national economy that the claimant can do, given his or her RFC, age, education, and work experience. 20 C. F. R. § 416. 912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and entitled to benefits. Id.
In this case, the ALJ determined at step one of the sequential process that Plaintiff has not engaged in substantial gainful activity since October 1, 2008, the alleged onset date. (AR 13. )
At step two, the ALJ determined that Plaintiff has the following medically determinable severe impairments: a history of severe left lower extremity lymphedema; left knee degenerative joint disease; morbid obesity; a history of chronic kidney disease and nephrolithiasis, with kidney stones, status post emplacement of a nephrostomy tube with subsequent tube fracture and dislodgment, and left kidney atrophy, resulting in a solitary right kidney and renal insufficiency; and a history of right staghorn calculus, status post percutaneous nephrolithotomy. (AR 14. )
At step three, the ALJ determined 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 C. F. R. Part 404, Subpart P, Appendix 1 ("listing(s)"), including but not limited to Section 1. 02 regarding major dysfunction of a joint, or a Section 6. 00 genitourinary impairment. (AR 14. )
The ALJ then found that Plaintiff has the RFC to perform light work as defined in §§ 20 C. F. R. 404. 1567(b) and 20 C. F. R. 416. 967(c) with the following limitations:
(AR 15-18. ) In determining the above RFC, the ALJ made an adverse credibility determination. (AR 15-16. )
At step four, the ALJ found that Plaintiff is capable of performing his past relevant work as a tax preparer, both as generally performed pursuant to the Dictionary of Occupational Titles ("DOT") and as he actually performed it. (AR 18-20. ) The ALJ also found that, although Claimant is able to perform past relevant work, considering Claimant's age, education, work experience and RFC, there are other jobs in the national economy that he is able to perform, including the jobs of assembler, table work/spotter and sorter/product. (AR 19-20. )
Consequently, the ALJ found that Claimant was not disabled, within the meaning of the Social Security Act. (AR 20. )
I. THE ALJ'S RFC IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Plaintiff challenges the ALJ's RFC, contending that the ALJ improperly discounted his subjective symptom testimony. The Court agrees. The ALJ did not provide specific, clear and convincing reasons supported by substantial evidence for discounting Plaintiff's subjective symptom allegations. The ALJ decision must be reversed and remanded for further proceedings.
A. Relevant Federal Law
The ALJ's RFC is not a medical determination but an administrative finding or legal decision reserved to the Commissioner based on consideration of all the relevant evidence, including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 C. F. R. § 1527(e). In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including medical records, lay evidence, and the effects of symptoms, including pain reasonably attributable to the medical condition. Robbins 446 F. 3d at 883.
The test for deciding whether to accept a claimant's subjective symptom testimony turns on whether the claimant produces medical evidence of an impairment that reasonably could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan 947 F.2d 341 346 (9th Cir. 1991); see also Reddick v. Chater 157 F. 3d 715, 722 (9th Cir. 1998); Smolen 80 F. 3d at 1281-82 esp. n. 2. The Commissioner may not discredit a claimant's testimony on the severity of symptoms merely because they are unsupported by objective medical evidence. Reddick 157 F. 3d at 722; Bunnell 947 F.2d at 343, 345. If the ALJ finds the claimant's pain testimony not credible, the ALJ "must specifically make findings which support this conclusion. " Bunnell 947 F.2d at 345. The ALJ must set forth "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony. " Thomas 278 F. 3d at 958; see also Rollins 261 F. 3d at 856-57; Bunnell 947 F.2d at 345-46. Unless there is evidence of malingering, the ALJ can reject the claimant's testimony about the severity of a claimant's symptoms only by offering "specific, clear and convincing reasons for doing so. " Smolen 80 F. 3d at 1283-84; see also Reddick 157 F. 3d at 722. The ALJ must identify what testimony is not credible and what evidence discredits the testimony. Reddick 157 F. 3d at 722; Smolen 80 F. 3d at 1284.
The ALJ found that Plaintiff has the medically severe impairments of chronic kidney disease and nephrolithiasis, huge lower left leg lymphedema, left knee degenerative joint disease and morbid obesity. (AR 14, 165, 359-360. ) The ALJ also found that Plaintiff has the nonsevere medical impairments of hypertension, anemia and lumbar spine degenerative disc disease. (AR 14. )
Plaintiff is 5 foot 4 and weighs over 400 pounds. (AR 17, 168) He only has one working kidney (AR 16) and has undergone multiple surgeries for kidney stones and experienced frequent problems with the placement of a nephrostomy tube. (AR 17-18, 837. ) He has an enlarged right kidney (AR 355) but no urgent need for hemodialysis. (AR 16, 260. ) He also suffers from left leg lymphedema with severe right flank pain.
(AR 355. ) His left leg is three or four times the size of his right leg and he has trouble putting on his left shoe. (AR 52. ) There is almost no movement of his left ankle and minimal movement of his left knee. (AR 73, 85, 359. ) He alleges severe pain in his left leg. (AR 165. ) In 2012, the consulting internist, Dr. Rocelyn Ella-Tamayo, noted that Plaintiff's left leg is very heavy and constantly painful and Plaintiff has difficulty standing and moving. (AR 356. ) He also has severe osteoarthritis in his left knee. (AR 14, 17. ) Plaintiff takes numerous medications, including tramadol for pain in his left leg, accupril for hypertension, tamosulosin, furosemide, ibuprofen and Vitamin D. (AR 39-40, 50. ) Plaintiff complains of physical exhaustion and drowsiness, and medication side effects of nausea and dizziness. (AR 51, 187. )
Despite these multiple impairments and limitations, the ALJ assessed Plaintiff with a less than light work RFC (essentially a sedentary RFC) with numerous postural and environmental limitations. (AR 14, 15. ) The ALJ bases his RFC on the assessments of the consulting internist Dr. Ella-Tamayo (AR 16, 355-360) and a State agency medical consultant, Dr. C. Friedman. (AR 17, 72-78, 85-90. ) The ALJ found that "the medical and subjective evidence support the residual functional capacity adopted above" (AR 18), thus rejecting any evidence or symptoms inconsistent with the ALJ's RFC. Based on the ALJ's RFC, the VE found that Plaintiff could perform both past relevant work and alternative work in the national economy. (AR 18-20. )
The ALJ discounted Plaintiff's credibility for a number of reasons. Because the ALJ did not make a finding of malingering, he was required to provide specific, clear and convincing reasons supported by substantial evidence for discounting Plaintiff's subjective symptom allegations. Smolen 80 F. 3d at 1283-84. The ALJ failed to do so.
1. The Medical Evidence
As already noted, the ALJ determined that the medical evidence supports the RFC he assessed. (AR 18. ) An ALJ is entitled to consider whether there is a lack of medical evidence to corroborate a claimant's alleged pain symptoms so long as it is not the only reason for discounting a claimant's credibility. Burch v. Barnhart 400 F. 3d 676, 680-81
(9th Cir. 2005). Here, the medical evidence supporting the ALJ's RFC is dated, insufficient and not fully developed enough to warrant a conclusion that Plaintiff's subjective symptoms are inconsistent with the medical evidence or that the medical evidence supports the ALJ's RFC. Consequently, the case must be remanded for further proceedings.
Although the ALJ's less than light work RFC is based on the medical source opinions of Dr. Ella-Tamayo and Dr. Friedman, both of those opinions leave an important consideration unaddressed, namely the number of days Plaintiff reasonably could be expected to miss work from his significant, ongoing recurrent impairments. The record is 958 pages long and indicates multiple severe and nonsevere impairments, frequent surgeries, trips to the emergency room and visits to clinics and hospitals. Dr. Ella-Tamayo's April 20, 2012 evaluation documents hospitalizations in 2011 and 2012 and notes "frequent" kidney infection. (AR 355-356. ) She also notes Plaintiff has been on "frequent" antibiotic therapy for constant right flank pain. (AR 356. ) Medical records indicate Plaintiff has received hydrocodone and vicodin. (AR 330, 333. ) Dr. Ella-Tamayo diagnosed "recurrent right kidney and urinary tract infection on nephrostomy. " (AR 360. ) (Emphasis added. ) Similarly, Dr. Friedman, finding Claimant's allegations "credible, " found "frequent" kidney infection and right flank pain. (AR 73, 85. ) A March 14, 2013 treatment note of Presbyterian Intercommunity Hospital ("PIH") describes Plaintiff's history as one characterized by multiple episodes of urolithiasis and multiple fractures in the lower left leg. (AR 837. ) The ALJ opinion itself reflects the recurrent nature of Plaintiff's kidney impairment. The ALJ found that Plaintiff's history of kidney impairment has included multiple instances of kidney stones and their removal and frequent problems with the placement of a nephrostomy tube, which has either fractured or dislodged on several occasions, requiring numerous replacements. (AR 17, 18. ) The ALJ also found that Plaintiff had several surgeries to remove right side kidney stones. (AR 18. ) These recurrent episodes of kidney infection and kidney stones are accompanied by dizziness, nausea and vomiting. (AR 239-241. )
The frequency of medical attention to Plaintiff's multiple severe and nonsevere impairments no doubt would have resulted in significant time away from work since the alleged onset date, had Plaintiff been employed. Typically, medical RFC assessments contain a question asking for an assessment of how many days Plaintiff could be expected to miss from work going forward. There were no such assessments here. Given the extensive medical treatment history and likely need for continued medical attention in the future, the ALJ erred in not obtaining such an assessment. It does not do to say that Plaintiff's abdominal pain from his kidney impairment has been "off-and-on in nature" or "intermittent" (AR 17, 18) because when it is "on" Plaintiff surely has been in severe pain and would miss work to obtain medical attention, including hospitalization. For example, as noted in a March 13, 2013 treatment record of PIH Hospital only months before the hearing, Plaintiff was hospitalized with a sudden onset of abdominal pain, grade 9 out of 10, described as sharp and constant, in his right flank, similar to previous episodes of urolithiasis. (AR 841. ) Plaintiff's severe stage IV chronic kidney disease is stable "at the moment" (AR 838) but the disease is chronic and pain can reoccur as it did in March 2013. By acknowledging the "intermittent" nature of Plaintiff's chronic kidney disease, the ALJ is implicitly conceding that future, ongoing medical attention can be expected. The ALJ's concession also suggests that Plaintiff can be expected to lose time from work in the future.
Nor does it do to say that Plaintiff's lymphedema was "stable" in December 2011. (AR 17. ) A PIH treatment note dated March 14, 2013 states that Plaintiff's "chronic" lymphedema has become progressively worse since 2008, associated with pain on standing and with limited ambulation. (AR 838-839. ) Dr. Ella-Tamayo noted that Claimant "had rapidly enlarging left leg lymphedema for the past 4 years. " (AR 356. ) The March 14, 2013 PIH note also indicates Plaintiff will undergo a surgical procedure for deep vein thrombosis. (AR 839. ) At the very least, the above evidence suggests continuing medical attention will be required for Plaintiff's lymphedema with attendant loss of work. Again, the ALJ erred in not obtaining an assessment of how much work
Plaintiff would be expected to miss because of "chronic, " apparently worsening lymphedema and other left leg impairments.
There is medical evidence in the record that, despite his pain, Plaintiff can stand and walk for 30 minutes up to a total of 2 hours, and sit for 6 hours a day. (AR 17. ) These were the assessments of Dr. Ella-Tamayo and Dr. Friedman adopted by the ALJ in his RFC. (AR 16, 17, 72-80, 85-90, 355-60. ) These assessments, however, occurred in 2012 and could not have considered Plaintiff's more recent medical records regarding his March 14, 2013 hospitalization for nephrolithiasis or anticipated surgery for deep vein thrombosis. Nor do they consider Plaintiff's testimony at the hearing that bears on his ability to sustain gainful work activity for 8 hours a day 5 days a week. SSR 96-8p; Reddick 157 F. 3d at 724. At the hearing, Mr. Hunter testified that, to relieve his leg pain, he elevates his leg five or six times a day (AR 50) and also utilizes a cold wrap. (AR 51. ) He further indicated that he lies down one or two times a day due to physical exhaustion which makes him sleepy. (AR 51. ) In his Pain Questionnaire, he indicated he needs to rest from time to time when performing light activity such as chores. (AR 187-188. ) There is some evidence in the medical record to support his testimony of fatigue on exertion. A PIH note dated December 26, 2011 states, "The patient does experience dyspnea (impaired breathing) on exertion with activity. " (AR 330. )
The ALJ did not have a medical expert at the July 18, 2013 hearing to evaluate Plaintiff's testimony or to consider recent medical evidence regarding Plaintiff's March 13, 2013 hospitalization for neophrolithiasis or his left leg impairment and anticipated surgery for deep vein thrombosis. Dr. Ella-Tamayo's evaluation was dated April 20, 2012 and Dr. Friedman's note bears a date of May 29, 2012. Their assessments obviously could not have considered Plaintiff's subsequent medical history or Plaintiff's testimony at the hearing. The ALJ did not question Plaintiff at the hearing about his testimony regarding fatigue and drowsiness on exertion. The ALJ decision does not mention Plaintiff's testimony at the hearing regarding elevating his leg, lying down, and fatigue and drowsiness on exertion. The Commissioner does not mention it in the Joint
Stipulation even though Plaintiff raised it there. Plaintiff's unrebutted statements that he elevated his leg six times a day, and lies down once or twice a day because of exhaustion and drowsiness obviously bear on whether he can sustain competitive work activity 8 hours a day, 5 days a week. The ALJ's finding that there is "no evidence either the Claimant's left lower extremity lymphedema or his left knee degenerative joint disease warrant additional functional limitations" (AR 17) is not supported by substantial evidence. The ALJ's RFC limitations are based on dated evidence from medical sources who did not consider more recent medical treatment or Plaintiff's hearing testimony about his exhaustion and drowsiness.
Thus, the record here is not fully developed as to how much work Plaintiff would miss and whether he can work a full work week. In Social Security cases, the ALJ has a special, independent duty to develop the record fully and fairly to assure that the claimant's interests are considered. Tonapetyan v. Halter 242 F. 3d 1144, 1150 (9th Cir. 2001); Smolen 80 F. 3d at 1288. The ALJ has a basic duty to inform himself about facts relevant to this decision. Heckler v. Campbell 461 U.S. 458, 471 n. 1 (1983) (J. Brennan, concurring). Ambiguous evidence triggers the ALJ's duty to conduct an appropriate inquiry. Smolen 80 F. 3d at 1288; Tonapetyan 242 F. 3d at 1150. As noted, the evidence of how much work Plaintiff would miss or whether he can work a full work week is ambiguous.
Another deficiency in the ALJ's opinion is that the ALJ addressed the severity of each severe and nonsevere impairment in singular fashion. An ALJ, however, must consider the combined effect of all of a claimant's impairments on his or her ability to function "without regard to whether each alone was sufficiently severe. " Smolen 80 F. 3d at 1290. Here, the ALJ admits that Claimant's obesity contributes to his functional limitations but then finds it does not warrant additional functional limitations beyond the ALJ's RFC. (AR 17. ) The Commissioner's logic is reversed. A claimant's severe and nonsevere impairments and the limitations they cause should in combination determine a claimant's RFC. It is error to apply an already determined RFC to dismiss an
impairment, particularly in a way that fails to consider how claimant's obesity operates in combination with his left leg lymphedema, left knee degenerative joint disease and lumbar spine degenerative disc disease to limit his mobility and cause physical exhaustion on exertion.
The medical evidence on which the ALJ bases his RFC is dated, does not account for more recent medical treatment or Plaintiff's hearing testimony on exhaustion and drowsiness and does not address satisfactorily how much Plaintiff would miss from work and whether he can work a full work week. As a result, the medical evidence is insufficient to warrant the conclusion that Plaintiff's alleged subjective symptoms are inconsistent with it. The medical evidence does not constitute a clear and convincing reason for discounting Plaintiff's credibility.
2. The ALJ's Other Reasons For Discounting Plaintiff's Credibility
The ALJ advanced other reasons for discounting Plaintiff's credibility. These reasons include: drinking heavily around the time of the alleged onset date, travel before the alleged onset date and no dialysis. (AR 16. ) The Commissioner has chosen not to defend these findings which are not mentioned in the Commissioner's portion of the Joint Stipulation. The Court treats the Commissioner's silence as an admission that these findings do not constitute clear and convincing reasons for discounting Plaintiff's credibility.
The ALJ, however, offers three reasons for discounting Plaintiff's credibility that are defended by the Commissioner. First, observing that Plaintiff was using a cane at the hearing, the ALJ noted that Mr. Hunter did not have a medical prescription for an assistive device. (AR 15. ) The ALJ reasoned that the fact that Plaintiff does not have a medically prescribed cane indicates that his difficulty with standing and walking is not as significant as alleged and thus lessens his credibility. (AR 15-16. ) Dr. Ella-Tamayo found Plaintiff to have a normal gait and found Plaintiff capable of standing and walking for 30 minutes at a time up to a total of 2 hours in an 8 hour day. (AR 359, 360. ) So did
Dr. Friedman. (AR 73, 85. ) As already noted, however, the RFC limitation of 2 hours walking and standing does not necessarily mean Plaintiff can sustain full-time employment 8 hours a day, 5 days a week. This limitation does not take into account Plaintiff's fatigue and drowsiness after activity and thus is insufficient to discount Plaintiff's credibility.
Second, the ALJ also cites daily activities inconsistent with allegations of disabling pain and symptoms. (AR 16. ) The ALJ noted that Claimant performs light activity such as cooking, laundry, doing dishes and assisting with housekeeping. (AR 16, 47-48. ) The ALJ's opinion is selective in presenting the facts of record which also indicate Plaintiff has to stop these activities at least once a day due to pain, he needs assistance with errands and must rest from time to time when doing chores. (AR 188. ) The activities cited, after considering the entire record, do not establish that Plaintiff can sustain work activity 8 hours a day, 5 days a week and do not constitute a clear and convincing reason for discounting Plaintiff's credibility.
Third, the ALJ's next reason for discounting Plaintiff's credibility is that in October 2011 the Claimant signed out of a hospital against medical advice which "does not enhance his credibility. " (AR 16. ) Claimant presented at the hospital with "heart-burn like" chest pains unrelated to exertional activity and was free of any chest pain at the time of evaluation. (AR 313. ) Claimant refused cardiac testing and signed out against medical advice. (AR 314-315. ) The ALJ did not find that Plaintiff had any severe or nonsevere cardiac impairment and Plaintiff does not allege a cardiac condition or chest pain in his disability claim. The isolated October 2011 incident is unrelated to Claimant's kidney and lymphedema impairments. The incident does not constitute a clear and convincing reason for discounting Claimant's credibility as to those impairments.* * *
The ALJ has not provided clear and convincing reasons supported by substantial evidence for discounting Plaintiff's credibility. The ALJ's RFC is not supported by
substantial evidence. The ALJ decision is reversed and remanded for further proceedings in accordance with this Memorandum Opinion and Order and with law.
IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this case for further proceedings in accordance with this Memorandum Opinion and Order and with law.
DATED: November 10, 2014
/s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE
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