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Marshall v. Saul

United States District Court, D. Alaska

September 25, 2019

ROBERT OLIN MARSHALL, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Motion for Reconsideration

         Pursuant to Rule 59(e), Federal Rules of Civil Procedure, defendant moves for reconsideration[1] of the court’s order[2] remanding this matter for an award of benefits. The court permitted plaintiff to file a response, [3] which he has timely filed.[4] Oral argument was not requested and is not deemed necessary.

         “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Here, defendant argues that the court committed an error of law, misread the administrative record, and misapplied the three-prong remand-for-benefits test.

         Defendant’s second argument is readily disposed of. Defendant argues that the court misread the record when it found that plaintiff’s RFC was “devoid of any specific limitations as to standing and walking.”[5] Defendant argues that because the ALJ included a sit/stand option in plaintiff’s RFC, that meant that the RFC allowed for the possibility of sitting all day and no walking at all. Defendant argues that these are specific limitations as to walking and sitting, and thus, the court erred in stating that the RFC did not contain specific limitations as to standing and walking.

         But as plaintiff points out, if a sit/stand option meant that plaintiff could sit all day that would be the equivalent of finding that he was limited to sedentary work. And, that is not what the ALJ found. The ALJ found that plaintiff was limited to light work. The court did not err in finding that plaintiff’s RFC was devoid of any specific limitations as to sitting and standing.

         Defendant next argues that the court erred in finding that the ALJ erred in discounting plaintiff’s pain and symptom statements based on his daily activities. In its order, the court observed that “the ALJ noted that plaintiff ‘reported in 2015 that he could perform some basic activities of daily living, such as preparing simple meals, driving if needed, and shopping in stores[, ]’”[6] but that “the ALJ did not explain how these activities would translate into an ability to work full time.”[7] Citing to Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007), the court explained that the ALJ had to make specific findings about how the daily activities in question would translate into an ability to work full time. Because the ALJ had not done so, the court concluded that this was not a clear and convincing reason for discounting plaintiff’s pain and symptom statements.

         Defendant argues that this was error on the court’s part because Orn contains two lines of reasoning, and the court only focused on one line of reasoning and ignored the second line. In Orn, the Ninth Circuit pointed out that it “‘has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to her overall disability.’” Id. (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). The Orn court then found that

[n]either of the two grounds for using daily activities to form the basis of an adverse credibility determination are present in Orn’s case. First, as he described them, Orn’s activities do not contradict his other testimony. Second, Orn’s activities do not meet the threshold for transferable work skills, the second ground for using daily activities in credibility determinations.

Id. (internal citations omitted). Defendant argues that the ALJ in this case relied on the first ground, that plaintiff’s daily activities contradicted his other testimony.

         Defendant may be correct. What the ALJ stated was that “the overall record is not consistent with [plaintiff’s] reported limitations with his activities.”[8] Although this statement is somewhat ambiguous as to the two lines of reasoning based on Orn, it could be construed as an attempt by the ALJ to discount plaintiff’s pain and symptom statements on the ground that they were inconsistent with his statements about his limitations. The court did not consider the daily activities reason on this ground. Thus, defendant’s motion for reconsideration on the daily activities issue is granted.

         Upon reconsideration of the daily activities issue, defendant argues that this was a clear and convincing reason for the ALJ to discount plaintiff’s pain and symptom statements. Plaintiff disagrees.

         Plaintiff argues that the ALJ did not explain how preparing simple meals, driving if necessary, and shopping in stores was inconsistent with plaintiff’s claim that he could not work full time. “‘The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant’s complaints.’” Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). For example, in Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), “[t]he ALJ found that Molina’s claimed inability to tolerate even minimal human interaction was inconsistent with her daily activities throughout the disability period” and the Ninth Circuit agreed, explaining that “the ALJ could reasonably conclude that Molina’s activities, including walking her two grandchildren to and from school, attending church, shopping, and taking walks, undermined her claims that she was incapable of being around people without suffering from debilitating panic attacks.” Id. But here, plaintiff aptly argues that the ALJ did not explain how his ability to shop, drive and make simple meals was inconsistent with his claimed limitations.

         Moreover, plaintiff’s daily activities, as he described them, were not actually inconsistent with his claimed limitations. As the ALJ noted, plaintiff stated that he drove “if he needed to, although it was hard ...


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