United States District Court, D. Alaska
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
to Rule 59(e), Federal Rules of Civil Procedure, defendant
moves for reconsideration of the court’s
order remanding this matter for an award of
benefits. The court permitted plaintiff to file a response,
which he has timely filed. Oral argument was not requested and is
not deemed necessary.
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
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.” 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.
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.
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[,
]’” but that “the ALJ did not explain
how these activities would translate into an ability to work
full time.” 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.
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
may be correct. What the ALJ stated was that “the
overall record is not consistent with [plaintiff’s]
reported limitations with his
activities.” 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
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.
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.
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 ...