Annette Logan v. Michael J. Astrue, No. 2:2008cv07944 - Document 19 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. THIS MEMORANDUM OPINION AND ORDER IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 ANNETTE LOGAN, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-7944-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on December 8, 2008, seeking review of the Commissioner s denial 22 of her applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on January 15, 24 2009, and February 3, 2009. The parties filed a Joint Stipulation on August 19, 2009, that 25 addresses their positions concerning the disputed issue in the case. The Court has taken the Joint 26 Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on August 8, 1954. [Administrative Record ( AR ) at 53, 57, 61.] She has 4 a high school education and has attended some college [AR at 72, 343-44], and has past relevant 5 work experience as an eligibility clerk. [AR at 67, 79, 81, 114, 344.] 6 Plaintiff protectively filed her application for Supplemental Security Income payments on 7 September 17, 2004, and filed her application for Disability Insurance Benefits, for Medicare only, 8 on April 14, 2005, alleging that she is unable to work due to hypertension, cholesterol, blurry 9 vision, and headaches. [AR at 17, 53-60, 65-66.] Plaintiff amended her alleged onset date of 10 disability to September 17, 2003. [AR at 342; Joint Stipulation ( JS ) at 2.]1 After her applications 11 were denied initially and upon reconsideration, plaintiff requested a hearing before an 12 Administrative Law Judge ( ALJ ). [AR at 27-32, 34-37, 40.] A hearing was held on October 18, 13 2006, at which plaintiff appeared with counsel and testified on her own behalf. [AR at 17, 340-55.] 14 Testimony was also received from a vocational expert. [AR at 355-58.] On October 31, 2006, the 15 ALJ issued an unfavorable decision. [AR at 17-24.] Plaintiff requested a review of the hearing 16 decision. [AR at 11.] When the Appeals Council denied plaintiff s request for review on October 17 8, 2008, the ALJ s decision became the final decision of the Commissioner. [AR at 5-8.] This 18 action followed. 19 20 III. 21 STANDARD OF REVIEW 22 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 23 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 24 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 25 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 26 27 28 1 In her disability application, plaintiff alleged that she has been disabled since September 1, 1989 [AR at 53, 57, 85], but that she has been unable to work due to her conditions since January 26, 2000. [AR at 66.] 2 1 In this context, the term substantial evidence means more than a mere scintilla but less 2 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 3 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 4 1257. When determining whether substantial evidence exists to support the Commissioner s 5 decision, the Court examines the administrative record as a whole, considering adverse as well 6 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 7 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 8 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 9 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 10 11 IV. 12 THE EVALUATION OF DISABILITY 13 Persons are disabled for purposes of receiving Social Security benefits if they are unable 14 to engage in any substantial gainful activity owing to a physical or mental impairment that is 15 expected to result in death or which has lasted or is expected to last for a continuous period of at 16 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 17 18 A. THE FIVE-STEP EVALUATION PROCESS 19 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 20 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 21 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 22 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 23 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 24 substantial gainful activity, the second step requires the Commissioner to determine whether the 25 claimant has a severe impairment or combination of impairments significantly limiting her ability 26 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 27 If the claimant has a severe impairment or combination of impairments, the third step requires 28 the Commissioner to determine whether the impairment or combination of impairments meets or 3 1 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 2 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 3 If the claimant s impairment or combination of impairments does not meet or equal an impairment 4 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 5 sufficient residual functional capacity to perform her past work; if so, the claimant is not disabled 6 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 7 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 8 prima facie case of disability is established. The Commissioner then bears the burden of 9 establishing that the claimant is not disabled, because she can perform other substantial gainful 10 work available in the national economy. The determination of this issue comprises the fifth and 11 final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 12 n.5; Drouin, 966 F.2d at 1257. 13 14 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 15 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 16 gainful activity since September 17, 2003, the amended alleged onset date of the disability.2 [AR 17 at 19.] At step two, the ALJ concluded that plaintiff has the severe impairments of hypertension 18 and tachycardia. [AR at 20.] At step three, the ALJ determined that plaintiff s impairments do not 19 meet or equal any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff 20 retained the residual functional capacity ( RFC )3 to perform light exertion work [4] with occasional 21 22 23 24 25 26 27 28 2 The ALJ also determined that plaintiff is insured for Disability Insurance Benefits for Medicare purposes through March 31, 2006. [AR at 19.] The ALJ acknowledged that plaintiff has worked as an in-home provider since the alleged onset of disability. [AR at 19-20.] However, the ALJ found that since she only worked at most 37.9 hours per month at a rate of $8.50 per hour, this employment did not meet substantial gainful activity levels since her alleged onset date. [Id.] 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg 4 1 climbing, balancing, stooping, kneeling, crouching and crawling. [Id.] At step four, the ALJ 2 concluded that plaintiff was capable of performing her past relevant work, which the vocational 3 expert identified as an administrative clerk. [AR at 24.] Accordingly, the ALJ determined that 4 plaintiff is not disabled. [Id.] 5 6 V. 7 THE ALJ S DECISION 8 Plaintiff contends that the ALJ failed to provide clear and convincing reasons for rejecting 9 plaintiff s subjective pain and limitations. [JS at 4-8,13-14.] As set forth below, the Court agrees 10 with plaintiff, and remands the matter for further proceedings. 11 12 PLAINTIFF S CREDIBILITY 13 Plaintiff contends that the ALJ failed to properly consider plaintiff s testimony and failed to 14 make proper credibility findings. [JS at 4-8, 13-14.] Specifically, plaintiff argues that the ALJ did 15 not provide clear and convincing reasons for discounting her subjective complaints and limitations 16 related to her headaches. 17 Whenever an ALJ discredits a claimant s testimony regarding subjective symptoms, 18 including degree of pain and functional limitations, the ALJ must make explicit credibility findings. 19 See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); see also Dodrill v. Shalala, 12 F.3d 20 915, 918 (9th Cir. 1993) (if the ALJ does not accept a claimant s testimony, he must make specific 21 findings rejecting it). The ALJ can reject a claimant s allegations only upon (1) finding evidence 22 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton v. Barnhart, 23 331 F.3d 1030, 1040 (9th Cir. 2003); see Lester, 81 F.3d at 834 (the ALJ must provide clear and 24 convincing reasons for discrediting a claimant s testimony as to severity of symptoms when there 25 is medical evidence of an underlying impairment). The factors to be considered in weighing a 26 claimant s credibility include: (1) the claimant s reputation for truthfulness; (2) inconsistencies 27 28 controls. 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 either in the claimant s testimony or between the claimant s testimony and her conduct; (3) the 2 claimant s daily activities; (4) the claimant s work record; and (5) testimony from physicians and 3 third parties concerning the nature, severity, and effect of the symptoms of which the claimant 4 complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. 5 §§ 404.1529(c), 416.929(c). It is not sufficient for the ALJ to make only general findings. Dodrill, 6 12 F.3d at 918. Absent evidence showing that a plaintiff is malingering, the ALJ must clearly 7 identify evidence in the record undermining the plaintiff s testimony to properly discredit his alleged 8 limitations. See id.; see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ( General 9 findings are insufficient; rather, the ALJ must identify what testimony is not credible and what 10 evidence undermines the claimant s complaints. ) (quoting Lester, 81 F.3d at 834). If properly 11 supported, the ALJ s credibility determination is entitled to great deference. See Green v. 12 Heckler, 803 F.2d 528, 532 (9th Cir. 1986). 13 As the record contains no evidence of malingering by plaintiff,5 the ALJ was required to 14 justify his credibility determination with clear and convincing reasons. See Benton, 331 F.3d at 15 1040. In the decision, despite finding that plaintiff s medical condition would reasonably produce 16 some pain, the ALJ found plaintiff s statements concerning the intensity, persistence and limiting 17 effects of her symptoms to be not entirely credible. [AR at 23.] The ALJ discounted plaintiff s 18 subjective complaints of pain and resulting limiting effects because: (1) there was a lack of 19 objective medical evidence corroborating plaintiff s symptoms; (2) she would have received more 20 aggressive treatment and . . . been fully compliant with treatment if she experienced the disabling 21 problems alleged; and (3) plaintiff s daily activities were not limited to the extent one would expect 22 given plaintiff s complaints of disabling symptoms and limitations. [AR at 23-24.] As discussed 23 below, the Court has considered the ALJ s reasons for discounting plaintiff s subjective testimony, 24 and finds that they are neither clear nor convincing. 25 26 27 5 28 The ALJ made no finding that plaintiff was malingering, nor does the evidence suggest plaintiff was doing so. 6 1 1. CORROBORATING OBJECTIVE MEDICAL EVIDENCE 2 First, the ALJ determined that plaintiff s testimony concerning her limitations was incredible, 3 because he found plaintiff s complaints and limitations to be out of proportion to the objective 4 findings reflected in her medical record. [AR at 22-23.] While it cannot provide the only basis to 5 reject a claimant s credibility, the absence of objective medical evidence to support a plaintiff s 6 subjective complaints is a factor that an ALJ can consider in discrediting symptom testimony. See 7 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (an adjudicator may not discredit a 8 claimant s testimony of pain and deny disability benefits solely because the degree of pain alleged 9 by the claimant is not supported by objective medical evidence. ) (emphasis added); see also Light 10 v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997) ( because a claimant need not 11 present clinical or diagnostic evidence to support the severity of his pain . . . a finding that the 12 claimant lacks credibility cannot be premised wholly on a lack of medical support for the severity 13 of his pain ); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (while medical evidence 14 alone cannot discredit testimony as to pain, it is one factor which the ALJ is permitted to consider). 15 Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by 16 objective and medical findings alone . . . [D]irect medical evidence of the cause and effect 17 relationship between the impairment and the degree of claimant s subjective complaints need not 18 be produced . . . The absence of an objective medical basis which supports the degree of severity 19 of subjective complaints alleged is just one factor to be considered in evaluating the credibility of 20 the testimony and complaints. Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987) (quoting 21 Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir. 1984), vacated and remanded on other grounds, 22 476 U.S. 1167, 106 S. Ct. 2885, 90 L. Ed. 2d 974 (1986)). 23 In describing her physical problems that make her unable to work, plaintiff testified about 24 how she suffers from, among other things, vascular headaches that she gets approximately twice 25 a month, and migraine headaches that she gets about two or three times a month. [AR at 347-51.] 26 Plaintiff testified that her vascular headaches last a few hours; she takes medication that doesn t 27 control the headaches, but enables her to function a little bit by lessening the pain. [AR at 350.] 28 Plaintiff also testified that her migraine headaches can last as long as two weeks; the medication 7 1 she takes really makes [her] drowsy and doesn t eliminate her pain, but makes it where it s 2 bearable. [AR at 350-51.] Plaintiff explained that she is unable to pursue substantial gainful 3 employment with her headaches, as she would not be able to work two weeks without missing 4 work. [AR at 351.] Plaintiff explained that she might have to miss as much as a week of work for 5 each migraine and half a day of work for each vascular headache. [Id.] Plaintiff also testified that 6 she must attend approximately two medical appointments each month, which take up her whole 7 day, and would have to request a day off from work for each appointment.6 [AR at 352-53.] The 8 ALJ acknowledged that plaintiff s medical records reflect her history of hypertension with 9 complaints of headaches, among other medical problems. [AR at 22; see, e.g., AR at 328.] 10 However, the ALJ discredited the extent of plaintiff s subjective limitations by finding that the 11 objective medical evidence was not compatible with [her] alleged inactivity and inability to 12 function. [AR at 23.] In so concluding, the ALJ referenced some, but not all, relevant parts of 13 plaintiff s medical records pertaining to her headaches, and found that the records indicate that 14 [plaintiff s] . . . headaches respond to Neurontin, a prescription medication. [AR at 22.] The 15 record does not adequately support this conclusion. 16 The record indicates that plaintiff s headaches were not as responsive to Neurontin as the 17 ALJ suggested, since plaintiff continued to suffer from headaches while she was taking the 18 medication. As plaintiff asserts, [t]his is not a case where headaches are alleged but reported 19 infrequently. [JS at 6.] Instead, plaintiff s medical records reveal many medical appointments 20 where plaintiff repeatedly complained of headaches during the period in which her doctors treated 21 her with Neurontin. [AR at 163-64, 166, 169-70, 173-74, 178-79, 190-91, 193, 199, 201, 233, 255, 22 23 24 25 26 27 28 6 The vocational expert testified that a person holding an administrative clerk position (the occupational title for plaintiff s past relevant work as an eligibility clerk), or various other light work positions, would not be able to sustain employment if he or she took two personal days each month for doctor appointments. [AR at 356-57.] The vocational expert also found that it would be borderline for such an individual to sustain employment while missing half a day of work approximately two times per month due to vascular headaches, and that probably over time [the employee] would not retain that employment. [AR at 358.] If such a pattern repeated itself [m]onth after month, the vocational expert found that eventually it would result in termination. [Id.] 8 1 257-58, 261, 263, 265, 267, 279-81, 313, 318, 321, 328, 330.] Some of the records referenced 2 by the ALJ in fact support plaintiff s assertion that she continued to suffer from headaches and that 3 Neurontin did not completely alleviate her pain. [AR at 20-22, 163 (August 5, 2005), 174 4 (December 14, 2004), 191 (September 3, 2004), 193 (June 5, 2004), 199 (March 4, 2004), 201 5 (February 9, 2004), 265 (December 14, 2005).] Additionally, the ALJ referenced plaintiff s 6 September 8, 2004, CT scan of her brain, which plaintiff underwent due to her headaches, and 7 noted that the examination showed nondescript atrophic changes presumably microvascular and 8 microischemic. [AR at 21, 233.] The CT results, however, also include mild atrophic changes 9 involving the cerebelli vermis and the sylvian fissures. Some frontal polar and extreme vertex 10 atrophy is present as well. [AR at 233.] The ALJ did not analyze how such objective medical 11 evidence of brain atrophy impacted on plaintiff s credibility regarding her subjective limitations. 12 In finding that the medical evidence did not corroborate plaintiff s limitations, the ALJ 13 misinterpreted some parts of plaintiff s medical record. For example, the ALJ incorrectly asserted 14 that plaintiff had no complaints at her March 9, 2005, medical appointment. [AR at 22, 170.] Yet 15 the referenced medical record indicates that plaintiff actually complained of a headache and said 16 her pain level that day was five out of ten. [AR at 170.] Similarly, the ALJ stated that a medical 17 record for May 5, 2005, revealed that plaintiff had no complaints, even though the record actually 18 shows that plaintiff reported that her level of pain was four out of ten. [AR at 22, 166.] The ALJ 19 also stated that from August 5, 2005, through June 2006, the medical records only showed plaintiff 20 complained of headaches on occasion. [AR at 22.] In fact, the medical records show notations 21 regarding plaintiff s headaches during at least eight of plaintiff s medical appointments during that 22 ten month period.7 [AR at 255, 257, 258, 263, 265, 267, 279, 281.] The record continues to 23 24 25 26 27 28 7 On August 12, 2005, the record reflects that plaintiff complained of a headache and had a level of pain of five out of ten. [AR at 281.] On August 26, 2005, plaintiff had a level of pain of six out of ten, and the record notes plaintiff s vascular headaches. [AR at 279.] On December 8, 2005, the record notes that plaintiff had a level of pain of four out of ten due to a headache and that plaintiff was prescribed Vicodin for her headaches. [AR at 267.] On December 14, 2005, the record notes that plaintiff complained of headaches, had a level of pain of five out of ten, and that her medication somewhat relieved her headaches. [AR at 265.] On December 15, 2005, plaintiff complained of headaches and a level of pain of six out of ten. [AR at 263.] On February 1, 2006, 9 1 document plaintiff s complaints and treatment regarding her headaches throughout the rest of 2 2006 and the beginning of 2007. [AR at 309, 313, 321, 328, 330.] When properly supported by 3 substantial evidence in the record, the ALJ s credibility determination is entitled to great deference 4 by this Court, as the Court s role is not to second-guess that decision. See Fair v. Bowen, 885 5 F.2d 597, 603 (9th Cir. 1989); see also Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 6 595, 600 (9th Cir. 1999). In this case, however, the ALJ failed to support his reasoning with 7 substantial evidence, as he misinterpreted portions of the record that actually contradicted his 8 finding of a lack of corroborating medical evidence, and downplayed the occasions on which 9 plaintiff complained of headaches. 10 To support his finding of a lack of corroborating objective medical evidence, the ALJ also 11 cited records of medical appointments during which plaintiff said she was not in pain that day [AR 12 at 21-22, 139, 164, 168, 171, 196] and that her medication somewhat helped her headaches [AR 13 at 22, 265.] To properly reject a plaintiff s alleged limitations, the ALJ must provide reasoning 14 sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 15 discredit the claimant s testimony. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). In the 16 decision, the ALJ did not provide specific reasoning to clearly explain how the cited medical 17 records discredited plaintiff s testimony. The ALJ did not analyze how plaintiff s failure to complain 18 about headaches at every appointment made her alleged limitations incredible, especially since 19 plaintiff testified that she experienced vascular headaches approximately twice a month and 20 migraine headaches two or three times a month. [AR at 349-50.] The ALJ also did not explain 21 why evidence that plaintiff s medication somewhat relieved her headaches made her testimony 22 about her limitations less than credible. [AR at 22, 265.] Instead, the records cited by the ALJ 23 appear to be consistent with plaintiff s testimony that her medication doesn t control her 24 headaches, but reduces the pain to where it s bearable, and enables her to function a little bit. 25 26 27 28 plaintiff complained of headaches with a pain level of five out of ten. [AR at 258.] On February 28, 2006, plaintiff complained of pain on the side of her face and head with a pain level of six out of ten. [AR at 257.] On April 10, 2006, the record notes that plaintiff was still suffering from vascular headaches for which she was taking Neurontin. [AR at 255.] 10 1 [AR at 350-51.] Since the ALJ failed to explain how the objective medical evidence discredits 2 plaintiff s testimony, the Court cannot find that the ALJ did not arbitrarily dismiss plaintiff s 3 credibility. 4 Given the extent of the medical evidence reflecting plaintiff s repeated complaints, 5 examinations, and treatment for headaches, some of which was inaccurately or not at all reflected 6 in the ALJ s decision, the Court finds that the ALJ failed to provide clear and convincing reasons 7 for discounting plaintiff s subjective symptom testimony based on the objective medical evidence. 8 2. AGGRESSIVE TREATMENT AND COMPLIANCE WITH TREATMENT 9 Next, the ALJ discredited plaintiff s testimony because he found that her alleged limitations 10 are not consistent with her treatment. [AR at 23.] Specifically, the ALJ found that the record does 11 not show that plaintiff ever told her doctors about any of her medications side effects, and that 12 none were listed by her providers. 8 [AR at 23.] Additionally, the ALJ found that the record 13 indicates that plaintiff was not always compliant with her medications [AR at 23, 125, 171, 199, 14 349], and concluded that [i]t is reasonable to assume that if [plaintiff] were experiencing the 15 disabling problems alleged, she would have received more aggressive treatment and she would 16 have been fully compliant with treatment. [AR at 23-24.] 17 Contrary to the ALJ s finding that plaintiff never discussed medication side effects with her 18 doctors, the record contains information that her doctor changed her medication to address at 19 least some of the side effects. [AR at 267.] During plaintiff s hearing, the ALJ asked plaintiff if she 20 ever talked to her doctors about taking medications that would not make her drowsy. [AR at 348.] 21 Plaintiff replied that she had not, as her doctors had changed her medication several times, and 22 were considering additional changes, in an effort to control her blood pressure and cholesterol. 23 [Id.] Given the amount of medication she takes, plaintiff explained, her doctors were having a little 24 problem[] with controlling both her cholesterol and high blood pressure. [AR at 348.] Consistent 25 with this assertion, the record reveals that plaintiff s doctor did alter some of her medications, 26 27 28 8 The ALJ also cited aspects of plaintiff s medical treatment that do not apply to plaintiff s complaints and alleged limitations associated with her vascular and migraine headaches. [AR at 23.] 11 1 because they had the adverse side effect of raising her blood pressure. [AR at 267.] Therefore, 2 although the record does not show that plaintiff told her doctors about some of her side effects, 3 such as drowsiness, there is evidence that plaintiff s medication regime was in flux, and that 4 doctors were addressing some of her medications other adverse side effects. 5 There is some indication in the record that, on at least a few occasions, plaintiff failed to 6 take her medications as prescribed. [AR at 21-23, 125, 171, 199, 349.] Indeed, during the 7 hearing, plaintiff admitted that she does not always take her medication when she is caring for her 8 brother, because it makes her too tired. [AR at 348-49.] An ALJ may take into consideration 9 noncompliance with prescribed medical treatment when finding a plaintiff incredible. See Bunnell, 10 947 F.2d at 346 (noncompliance with prescribed course of treatment is a relevant consideration 11 in assessing credibility). However, this reason is not sufficiently clear and convincing to negate 12 the entirety of plaintiff s subjective complaints here. In the decision, the ALJ noted only three 13 occasions where plaintiff reported during her medical appointments that she had not taken her 14 prescribed medications before attending her appointments. [AR at 21-23, 125, 171, 199.] 15 However, the record also contains information about dozens of other appointments where plaintiff 16 reported no such lapse. This selective analysis of the record by the ALJ is improper, as he cannot 17 pick and choose from the evidence in order to support his conclusion of incredibility. See 18 Robinson v. Barhnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) ( The ALJ is not entitled to pick and 19 choose from a medical [record], using only those parts that are favorable to a finding of 20 nondisability ) (citing Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984)). Thus, by 21 referencing only three appointments out of dozens where plaintiff reported she had not taken her 22 prescribed medication, the ALJ s rejection of plaintiff s credibility based on plaintiff s occasional 23 noncompliance does not withstand scrutiny. 24 The ALJ s characterization that plaintiff did not pursue aggressive treatment due to her 25 failure to report all of her medications negative side effects and her occasional noncompliance 26 with her medication is not wholly accurate. The record documents dozens of appointments from 27 February 2004 to January 2007, where plaintiff complained about and was treated for her 28 headaches. [AR at 163-64, 166, 169-70, 173-74, 178-79, 190-91, 193, 199, 201, 233, 255, 25712 1 58, 261, 263, 265, 267, 279-81, 313, 321, 328, 330.] The record shows that plaintiff continuously 2 sought treatment for her headaches, underwent treatments and a CT scan, and took a variety of 3 prescription medications. The ALJ did not clearly and convincingly explain in what way plaintiff s 4 treatment for her headaches was not sufficiently aggressive, and therefore, the ALJ s rejection 5 of plaintiff s credibility based on her treatment was improper. 6 3. PLAINTIFF S DAILY ACTIVITIES 7 The ALJ also discounted plaintiff s credibility regarding her subjective symptoms and 8 limitations because she has worked as an in-home provider for her brother since September 17, 9 2003, working between 20.2 and 37.9 hours a month. [AR at 24, 345-46.] Generally speaking, 10 if a claimant has the ability to perform activities that involve many of the same physical tasks as 11 a particular type of job, it would not be farfetched for an ALJ to conclude that the claimant s pain 12 does not prevent [him] from working. See Fair, 885 F.2d at 603. Engaging in some household 13 chores or activities, however, is not necessarily inconsistent with a finding of disability. See 14 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (benefits awarded on appeal to a claimant 15 experiencing constant leg and back pain, despite the claimant s ability to cook and wash dishes); 16 see also Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (stating that ability to assist with 17 some household tasks was not determinative of disability) (citing Smith v. Califano, 637 F.2d 968, 18 971 (3rd Cir. 1981) (disability claimant need not vegetate in a dark room excluded from all forms 19 of human and social activity )). The ALJ found that for less than 10 hours each week, plaintiff 20 fixes [her brother s] meals, does his laundry, makes his bed, applies lotion on his legs, goes to 21 doctor s appointments with him and does the grocery shopping. [AR at 24, 346-47.] The ALJ 22 acknowledged that plaintiff s part-time work was not performed at substantial gainful activity 23 levels, but still found that it undermined plaintiff s credibility by indicat[ing] that she is not as 24 impaired and functionally limited as she alleges. [AR at 24.] 25 The Court is not persuaded that plaintiff s ability to help her brother less than 10 hours per 26 week by doing light housework, attending appointments, fixing meals, going grocery shopping, and 27 applying lotion [AR at 346-47] supports the ALJ s finding that plaintiff could sustain gainful 28 employment, because the ability to do these limited activities does not necessarily translate into 13 1 an ability to do activities that are transferable to a work setting. See Fair, 885 F.2d at 603 (noting 2 that a claimant is not required to be utterly incapacitated in order to be disabled and that many 3 home activities are not easily transferable to what may be the more grueling environment of the 4 workplace, where it might be impossible to periodically rest or take medication ; see also Smolen 5 v. Chater, 80 F.3d 1273,1284 n.7 (9th Cir. 1996). To properly discredit a plaintiff s credibility 6 based on her daily activities, the ALJ must find that plaintiff is able to spend a substantial part of 7 [her] day engaged in pursuits involving the performance of physical functions that are transferable 8 to a work setting. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (quoting Morgan, 169 9 F.3d at 600) (emphasis in original); see also Nelson v. Astrue, 610 F.Supp.2d 1070, 1076 (C.D. 10 Cal. 2009). The ALJ made no findings that plaintiff is capable of performing these activities 11 repeatedly or for substantial periods of time without rest, and did not explain how plaintiff s 12 activities while helping her brother part-time are transferable to the workplace. See Fair, 885 F.2d 13 at 603. Nor did the ALJ provide an explanation as to how plaintiff s ability to perform certain 14 activities is inconsistent with her claimed limitations. See Reddick, 157 F.3d at 722 (an ability to 15 take part in some household tasks bears on a claimant s credibility only to the extent that the level 16 of activity is in fact inconsistent with the alleged limitations). The Court therefore finds that the ALJ 17 failed to provide clear and convincing reasons, based upon plaintiff s activities, for discrediting 18 plaintiff s alleged limitations. 19 While an ALJ may certainly find testimony not credible and disregard it . . ., [courts] cannot 20 affirm such a determination unless it is supported by specific findings and reasoning. Robbins 21 v. Social Security Administration, 466 F.3d 880, 884-85 (9th Cir. 2006). The ALJ erred by failing 22 to provide clear and convincing reasons for discounting plaintiff s subjective testimony. Remand 23 is warranted. 24 25 VI. 26 REMAND FOR FURTHER PROCEEDINGS 27 As a general rule, remand is warranted where additional administrative proceedings could 28 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 14 1 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 2 In this case, remand is appropriate in order to reconsider plaintiff s credibility concerning her 3 limitations pertaining to her headaches. The ALJ is instructed to take whatever further action is 4 deemed appropriate and consistent with this decision. 5 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 6 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 7 for further proceedings consistent with this Memorandum Opinion. 8 9 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 10 11 12 DATED: September 16, 2009 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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