Laval C Smith v. Michael J Astrue, No. 2:2007cv04991 - Document 16 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is reversed and the case is remanded for further proceedings consistent with this opinion. (READ ATTACEHD FOR DETAILS) (esa)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LAVAL SMITH, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-4991 PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Before the Court is Plaintiff s appeal of a decision by Defendant 20 Social Security Administration ( the Agency ), denying his application 21 for Supplemental Security Income ( SSI ). 22 below, the Agency s decision is REVERSED and the action is REMANDED 23 for further proceedings consistent with this opinion. For the reasons discussed 24 II. 25 STATEMENT OF FACTS 26 27 28 Plaintiff was born in 1967 and was 39 years old at the time of the administrative hearing. (Administrative Record ( AR ) 54, 200.) 1 He has worked numerous jobs since graduating from high school in 1987, 2 including janitor, umpire, security guard, carpenter, and handyman. 3 (AR 88, 200.) 4 In August 2005, Plaintiff was involuntarily committed to a 5 psychiatric hospital after exhibiting psychotic behavior. 6 32.) 7 stabilized with medication and therapy, and then released. 8 124.) 9 been disabled due to a mental impairment since July 2005. 10 (AR 122- Plaintiff was held at the hospital for three days, until he was (AR 123, Thereafter, he filed an application for SSI, alleging he had (AR 53-59.) In May 2006, Plaintiff was, again, involuntarily committed after 11 experiencing another psychotic episode. 12 ten days in the hospital that time and was released after he was 13 stabilized with medication and therapy. 14 (AR 168.) Plaintiff spent (AR 180.) Plaintiff s application for SSI was denied by the Agency. He 15 then requested and was granted a hearing before an Administrative Law 16 Judge ( ALJ ). 17 decision denying the application. 18 Plaintiff suffered from a psychotic disorder, not otherwise specified 19 ( NOS ). 20 Plaintiff having mild restrictions in activities of daily living, and 21 moderate difficulties in maintaining social functioning, 22 concentration, persistence, and pace. 23 Plaintiff s testimony that he was unable to maintain a job and 24 concluded that Plaintiff could perform his former work as a janitor. 25 (AR 20-21.) 26 (AR 192-207.) (AR 17.) Following the hearing, the ALJ issued a (AR 12-21.) The ALJ found that He determined that this condition resulted in (AR 19.) The ALJ discounted Plaintiff appealed to the Appeals Council, which denied his 27 request for review on June 18, 2007. 28 commenced this action. 2 (AR 4-7.) Plaintiff then 1 III 2 ANALYSIS 3 Plaintiff claims that the ALJ erred when he failed to: 4 1) properly consider his testimony; 2) fully and fairly specify the 5 duties of Plaintiff s past relevant work as a janitor; and 3) consider 6 medical evidence which established that Plaintiff could not work. 7 (Joint Stip. at 3-7, 16-17, 19-23.) 8 concludes that the ALJ erred in all three areas and, therefore, remand 9 is warranted. 10 11 A. As set forth below, the Court Standard Of Review Disability under the regulations is defined as an inability to 12 perform any substantial gainful activity due to any medically 13 determinable physical or mental impairment which can be expected to 14 result in death or which has lasted or can be expected to last for a 15 continuous period of not less than 12 months. 16 ยง 423(d)(1)(A). 17 claimant is not disabled only if the decision is not supported by 18 substantial evidence or if the decision is based on legal error. 19 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 20 2006). 21 reasonable mind might accept as adequate to support a conclusion. 22 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal 23 quotation marks and citation omitted). 24 scintilla but less than a preponderance. 25 F.3d 1211, 1214 n.1 (9th Cir. 2005). 26 conclusion even if the evidence in the record is susceptible to more 27 than one rational interpretation. See 42 U.S.C. The Court may overturn the ALJ s decision that a Substantial evidence is such relevant evidence as a It is more than a mere Bayliss v. Barnhart, 427 This Court must uphold the ALJ s Burch, 400 F.3d at 679. 28 3 1 B. 2 The ALJ s Credibility Determination The ALJ found that Plaintiff s claim that his mental impairment 3 precluded him from working was not credible. 4 exception to this finding and argues that the record does not support 5 it. 6 that the ALJ erred in his credibility analysis and remands the case 7 for further consideration of the issue. 8 9 (Joint Stip. at 4-7.) Plaintiff takes For the following reasons, the Court finds The ALJ found that Plaintiff produced objective medical evidence of an impairment which could reasonably be expected to produce some 10 limitation. (AR 20.) 11 malingerer. Thus, the ALJ could reject Plaintiff s testimony only for 12 specific, clear, and convincing reasons. 13 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 14 1273, 1281, 1283-84 (9th Cir. 1996)). 15 credibility, the ALJ was free to consider many factors, including 16 ordinary techniques of credibility evaluation[,]. . . unexplained or 17 inadequately explained failure to seek treatment or to follow a 18 prescribed course of treatment, . . . and the claimant s daily 19 activities. 20 1284). 21 22 23 The ALJ did not find that Plaintiff was a Tommasetti v. Astrue, 533 In evaluating Plaintiff s Tommasetti, 533 F.3d at 1039 (quoting Smolen, 80 F.3d at The ALJ rejected Plaintiff s claim that his mental impairment precluded him from working for five reasons: 1. There was a lack of objective medical evidence supporting this claim; 24 25 2. Plaintiff s behavior; 26 3. There was a very limited mental health treatment history; 27 4. The medical records indicated that Plaintiff was able to 28 function adequately when he took his medications; and 4 1 5. 2 3 4 Plaintiff was lucid, logical, and appropriate at the administrative hearing. (AR 20.) As to the first reason -the lack of objective medical evidence-- 5 the Court notes that there was medical evidence that Plaintiff 6 suffered from a psychotic disorder, which caused him to have psychotic 7 breaks. 8 committed to a psychiatric hospital for treatment. 9 Thus, the Court disagrees with the ALJ s generalization that the (AR 121-88.) On two occasions Plaintiff was involuntarily (AR 122, 167.) 10 objective medical evidence does not support Plaintiff s claim. 11 reading of the record establishes that some of the evidence supports 12 his claim and some does not. 13 evidence the ALJ was relying on when he found that it did not support 14 Plaintiff s claim. 15 this was a valid justification for rejecting Plaintiff s credibility. 16 See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) 17 (noting ALJ s justification for discounting claimant s testimony, 18 i.e., that it was not consistent with or supported by the overall 19 medical evidence of record, was exactly the type we have previously 20 recognized the regulations prohibit ) (citations omitted). 21 A fair The Court is unable to determine what For that reason, the Court cannot conclude that The second reason cited by the ALJ in support of his finding that 22 Plaintiff was not credible was Plaintiff s behavior. 23 ALJ did not explain what behavior he was referring to, i.e. whether it 24 was Plaintiff s failure to comply with his doctor s orders and take 25 his medication; whether it was Plaintiff s conduct at the hearing, 26 which the ALJ noted was appropriate; or some other behavior. 27 more, the Court cannot conclude that this was a proper justification 28 for discounting Plaintiff s credibility. 5 (AR 20.) The Without 1 The next reason the ALJ provided was that there was a very 2 limited mental health treatment history. 3 that the medical records showed that Plaintiff was involuntarily 4 committed on one occasion. 5 In fact, Plaintiff was involuntarily committed twice, in August 2005 6 and in May 2006, (AR 120-32, 167-68), which the ALJ noted in a 7 different section in his decision. 8 when addressing Plaintiff s credibility, the ALJ made a different 9 finding as to how many times Plaintiff had been involuntarily (AR 20.) (AR 20.) This finding is not accurate. (AR 17, 19.) 10 committed. 11 The ALJ explained It is unclear why, evidence and, therefore, is rejected. 12 Regardless, this reason is not supported by substantial The fourth reason relied on by the ALJ for discounting 13 Plaintiff s credibility was that Plaintiff s medications controlled 14 his behavior and allowed him to function normally. 15 a valid reason for discounting a claimant s testimony. 16 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc); see also Social 17 Security Ruling ( SSR ) 88-13. Further, the evidence supports this 18 finding. In fact, Plaintiff himself admitted 19 that the medication controlled his behavior. 20 (AR 122-32, 167-68.) (AR 20.) This is See Bunnell v. (AR 201, 202, 204.) The final reason provided by the ALJ for finding Plaintiff not 21 credible was that he was lucid, logical, and appropriate at the 22 hearing. 23 claimant s testimony, see Morgan v. Comm r of Soc. Sec. Admin., 169 24 F.3d 595, 600 (9th Cir. 1999), and it, too, was supported by the 25 record. 26 questions and acting appropriately at the hearing. 27 28 (AR 20.) This, too, is a valid reason for questioning a Plaintiff had no apparent problem responding to the ALJ s (AR 198-205.) In addition to the five factors the ALJ did address, the Court notes that the ALJ failed to address Plaintiff s father s submission. 6 1 Plaintiff lived with his father. 2 completed a form in which he set forth his observations of Plaintiff s 3 behavior and his ability to function. 4 things, Plaintiff s father noted that Plaintiff sees himself as a big 5 man, who was responsible for sending the storm (presumably Hurricane 6 Katrina) to New Orleans. 7 that Plaintiff hears voices and sometimes thinks pigeons are talking 8 to him. 9 was a mistake; he should have considered the father s input in (AR 85, 87.) In October 2005, Plaintiff s father (AR 84.) (AR 80-87.) Among other Plaintiff s father also observed The ALJ did not discuss this testimony and that 10 assessing Plaintiff s credibility. 11 ALJ was not at liberty to consider only the evidence that supported 12 his credibility finding. 13 (9th Cir. 1984) (explaining ALJ cannot ignore competent evidence in 14 record that contradicts his conclusion); Day v. Weinberger, 522 F.2d 15 1154, 1156 (9th Cir. 1975) ( [A] reviewing court must consider both 16 evidence that supports, and evidence that detracts from ALJ s 17 conclusion).1 See Stout, 454 F.3d at 1056. The See Gallant v. Heckler, 753 F.2d 1450, 1456 18 Having addressed each of the ALJ s reasons for rejecting 19 Plaintiff s credibility, and a sixth consideration that the ALJ did 20 not discuss, the Court finds that there are two reasons supporting the 21 rejection of Plaintiff s credibility and four that either do not 22 23 1 24 25 26 27 28 In an apparent separate ground, Plaintiff complains that the ALJ failed to discuss the questionnaire filled out and submitted by his father. (Joint Stip. at 4.) The ALJ was required to consider the father s input. Stout, 454 F.3d at 1053 ( [A]n ALJ must consider lay witness testimony concerning a claimant s ability to work ). His failure to do so was not harmless because, had he credited the father s testimony, he likely would have reached a different conclusion. Id. at 1056. On remand, the ALJ should address the father s questionnaire. 7 1 support the rejection or are neutral. 2 this time whether, had the ALJ considered all these factors, he would 3 have concluded that Plaintiff s testimony should be credited. 4 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 5 2007) (explaining court should look at whether ALJ s decision remains 6 valid, despite erroneous reliance on invalid factors). 7 concludes that the prudent course is to remand the case to the ALJ and 8 let him determine in the first instance whether Plaintiff s testimony 9 should be credited. 10 11 C. It is difficult to determine at See The Court The ALJ s Finding That Plaintiff Could Perform His Past Work Plaintiff contends that the ALJ erred when he determined that 12 Plaintiff could perform his past work as a janitor. 13 view, the ALJ failed to match the specific duties required of that job 14 with Plaintiff s abilities. 15 disagrees. 16 all of Plaintiff s limitations and matched them with the functional 17 demands of the job of janitor. 18 argument is not supported by the record. 19 (Joint Stip. at 16-17.) In Plaintiff s The Agency It argues that the vocational expert s testimony addressed (Joint Stip. at 17.) The Agency s The ALJ found that Plaintiff had moderate difficulties in 20 maintaining concentration, persistence, and pace. 21 ALJ included this limitation in a hypothetical question to the 22 vocational expert, the vocational expert concluded that Plaintiff 23 could not work as a janitor. 24 determined, however, that Plaintiff could work, relying on the answer 25 the vocational expert gave to a different hypothetical that left out 26 this limitation. 27 his finding on all of Plaintiff s limitations. 28 mandates remand on this issue. (AR 206.) This was a mistake. 8 (AR 19.) When the The ALJ ultimately The ALJ was required to base His failure to do so 1 D. The ALJ s Finding That Plaintiff Could Work 2 In his third and final claim, Plaintiff argues that the ALJ 3 failed to properly assess whether Plaintiff could sustain employment. 4 (Joint Stip. at 19-23.) 5 ALJ s finding that Plaintiff could sustain employment was supported by 6 the medical evidence, particularly the state agency physician who 7 found that Plaintiff had no significant limitation in the ability to 8 maintain concentration, persistence, and pace . . .. 9 23.) The Agency disagrees. It argues that the (Joint Stip. at The problem with the Agency s argument here is that, though the 10 state agency physician may have reached this conclusion, the ALJ 11 reached a different conclusion. 12 moderate difficulties in maintaining concentration, persistence, and 13 pace . . .. 14 On remand, the ALJ must reconcile his finding that Plaintiff would 15 have moderate difficulties in concentration, persistence, and pace 16 with his finding that Plaintiff would still be able to hold down a job 17 as a janitor. (AR 19.) He found that Plaintiff would have As such, the Agency s argument is misplaced. 18 IV 19 CONCLUSION 20 For the reasons set forth above, the Agency s decision is 21 reversed and the case is remanded for further proceedings consistent 22 with this opinion. 23 IT IS SO ORDERED. 24 DATED: November 14 , 2008. 25 26 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 27 28 S:\PJW\Cases-Soc Sec\SMITH, L 4991\Memo_Opinion.wpd 9
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