1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 HEIDI M. KIM, Case No. 20-cv-08737-AGT

7 Plaintiff, ORDER ON CROSS MOTIONS FOR 8 v. SUMMARY JUDGMENT

9 KILOLO KIJAKAZI, Re: Dkt. Nos. 15, 16 Defendant. 10

11 If the claimant in a social-security disability case says she has limitations (e.g., she’s bedrid- 12 den), but her daily activities suggest otherwise (e.g., she runs for thirty minutes per day), the presid- 13 ing ALJ may discount or reject the claimant’s testimony, based on a lack of credibility. The ALJ 14 may take this step though only if there’s an actual inconsistency between limitations and activities. 15 See Garrison v. Colvin,

(9th Cir. 2014). A finding of inconsistency must also 16 be convincing to withstand judicial review. See

at 1014–16. Here, in Heidi Kim’s disability 17 case, the ALJ made a credibility finding of the type outlined, and the question on review is whether 18 that finding was convincing. As explained below, it was not. 19 Kim testified that due to diagnosed pulmonary conditions (emphysema, chronic bronchitis, 20 chronic obstructive pulmonary disease) she wasn’t able to work during the relevant period. She said 21 she had trouble breathing, which left her feeling weak and distracted. She also said she spent most 22 of the day lying down; and if she needed to be on her feet, then after 30 to 60 minutes of standing 23 she would need to lie down for 15 to 30 minutes to improve her breathing. See AR 18, 50–54, 266. 24 The ALJ found Kim’s testimony to be inconsistent with her reported activities. Kim, the 25 ALJ explained, testified that “she must lie down for 15 to 30 minutes after being on her feet . . . but 26 she did her own grocery shopping;” she testified that “she felt very weak and . . . not able to con- 27 centrate but she could prepare meals, wash dishes and do laundry.” AR 20. Based on these findings, 1 The ALJ, in effect, determined that someone with Kim’s stated limitations couldn’t possibly 2 do her own grocery shopping, cooking, or laundry. That finding wasn’t convincing. Grocery shop- 3 ping isn’t a labor-intensive all-day activity; Kim could have done it and still spent most of the day 4 lying down, as she testified to doing. Feasibly, Kim also could have completed her grocery shopping 5 in one hour or less, such that she’d be able to lie down after being on her feet for 30 to 60 minutes, 6 as she said she needed to do. As for preparing meals, washing dishes, and doing laundry, these basic 7 tasks can be done without much stamina or strength; and they’re even less demanding when per- 8 formed by someone who lives alone, as Kim did. See AR 51. Even if Kim was weak and had 9 trouble concentrating and often needed to lie down, she still could have done these household chores. 10 In defending the ALJ’s assessment of Kim’s activities, the Social Security Commissioner 11 relies on Molina v. Astrue,

(9th Cir. 2012), and Valentine v. Comm’r Soc. Sec. Admin., 12

(9th Cir. 2009). In both those cases, an ALJ pointed to inconsistencies between a 13 claimant’s subjective complaints, on the one hand, and daily activities, on the other, in discounting 14 the claimant’s testimony and denying benefits. Those decisions were then affirmed. 15 The Commissioner contends that the same result should follow here, but this argument over- 16 looks that in Molina and Valentine, unlike here, there were pronounced discrepancies between the 17 claimant’s alleged limitations and daily activities. The claimant in Molina told the ALJ she couldn’t 18 tolerate “even minimal human interaction,” but she admitted to walking her grandchildren to school, 19 attending church, and shopping. Molina,

. In Valentine, the claimant told the ALJ 20 he had debilitating fatigue but admitted to going to the gym and engaging in “target shooting, snow 21 skiing, . . . [and] gardening.” Valentine v. Astrue, No. 07-34-KI,

, at *6 (D. Or.

, 2008); see also Valentine,

. 23 Here there was nothing similar. Kim told the ALJ she felt weak and distracted and frequently 24 needed to lie down. She also told the ALJ she did her own grocery shopping, cooking, dish washing, 25 and laundry. As explained above, these were not inconsistent statements. 26 The ALJ’s analysis of Kim’s activities wasn’t convincing. And the ALJ didn’t provide any 27 1 other rationale sufficient to support his decision to discount Kim’s testimony.’ As a result the ALJ 2 || erred, and his decision denying benefits must be vacated. (Kim’s motion for summary judgment is 3 || granted and the Commissioner’s cross-motion is denied.) Conflicts and ambiguities exist in the 4 || record, so the case is remanded for further proceedings, not for payment of benefits. See Treichler 5 v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2014). 6 IT IS SO ORDERED. 7 Dated: March 2, 2022 8 ALEX G. TSE 9 United States Magistrate Judge 10 11 12

15

Q 16

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Z 18 19 20 21 22 23 24 25 26 27 ' The ALJ did find a lack of medical evidence substantiating the severity of Kim’s symptoms, see AR 20, but it’s undisputed that “an ALJ may not reject a claimant’s [testimony about her] subjective complaints based 28 solely on a lack of [corroborating] medical evidence.” Burch v. Barnhart,

(9th Cir. 2005). The ALJ needed to identify some other, convincing reason for discounting Kim’s testimony, but didn’t.