Maria Sonia Cortez v. Michael J. Astrue, No. 2:2008cv07974 - Document 16 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. (See Order for Details). (rp)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MARIA SONIA CORTEZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-07974-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issue: 28 1. Whether the Administrative Law Judge ( ALJ ) failed to 1 provide clear and convincing reasons to reject Plaintiff s 2 subjective testimony. (JS at 3.) 3 4 This Memorandum Opinion will constitute the Court s findings of 5 fact and conclusions of law. 6 concludes 7 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 8 9 I 10 THE ALJ PROVIDED INSUFFICIENT AND UNSUBSTANTIAL REASONS 11 TO DEPRECIATE PLAINTIFF S CREDIBILITY 12 13 Plaintiff asserts the ALJ failed to provide clear and convincing reasons to reject her subjective pain testimony. 14 15 A. 16 In a Pain Questionnaire dated September 29, 2005 (AR 110-112), 17 Plaintiff asserted that she has pain in her low back, and from her 18 right hip to her knee. 19 doing any movement. 20 dissipates. 21 and has been doing so for four to five years. 22 relieve the pain in approximately one hour; however, it causes 23 dizziness, drowsiness, and nausea. 24 activities in October 2004. 25 diminished. 26 two blocks at a time, can stand 15 to 25 minutes at a time, and can 27 sit one to two hours at a time. (Id.) 28 Analysis of the Record. It occurs when she is standing up, bending, or After resting for one to two hours, the pain She takes numerous medications for her pain every day, The medication can The pain first affected her Since then, her daily activities have She needs assistance with daily chores, can walk one or The numerous medications which Plaintiff takes for her pain are 2 1 documented in the Kaiser Permanente records. (AR 408.) 2 the 3 prescription pain reliever Tramodol four times a day; a once-weekly 4 injection of Methotrexate for arthritis; regular office visits for 5 infusions of Remicade; and Prednisone, a steroid, three times a day. 6 (Id.) narcotic pain reliever Oxycodone three times These include a day; the 7 At her hearing before the ALJ, Plaintiff provided detailed 8 answers to questions concerning the nature and extent of her pain. (AR 9 52-55.) Her medical records document continued severe pain in her 10 left knee and lower back, after she received hip surgery. (AR 280, 11 288.) 12 Plaintiff testified that her medications make her nauseated, 13 dizzy, confused and sleepy. (AR 62.) 14 about medication side effects of sleepiness (AR 262), nausea, and 15 dizziness (AR 290). 16 17 18 19 She also informed her doctors There is no evidence in the record, and no finding was made that Plaintiff is a malingerer. In the decision, the ALJ depreciated Plaintiff credibility in the following discussion: 20 After considering the evidence of record, I find that 21 the [Plaintiff s] medically determinable impairments could 22 reasonably be expected to produce the alleged symptoms, but 23 that the [Plaintiff s] statements concerning the intensity, 24 persistence and limiting effects of these symptoms are not 25 entirely credible. 26 body are not very specific. 27 evidence shows that the results of her right hip operation 28 were very Her complaints of pain throughout her positive. Her Furthermore, the objective statement 3 that she requires 1 crutches 2 ([Plaintiff s] testimony) is not supported by Dr. Altman s 3 report (exhibit citations omitted). Thus, the [Plaintiff s] 4 allegations of debilitating pain are not entirely credible. 5 (exhibit citations omitted) or a cane (AR 23.) 6 7 8 9 Thus, in sum, the ALJ cited the following factors in depreciating Plaintiff s excess pain complaints: 1. 10 11 asserted lack of objective evidence; 2. 12 13 Plaintiff s statement that she used a cane for ambulation was not supported by the objective medical evidence; 3. 14 15 Plaintiff s subjective allegations were contrasted with an Plaintiff admitted to her doctors that her pain had diminished; 4. Medical source opinions agreed that Plaintiff could 16 stand/walk for at least four hours and perform at least 17 sedentary work. 18 (AR 23; see JS at 10.) 19 20 B. Applicable Law. 21 Subjective complaints of pain or other symptomology in excess of 22 what an impairment would normally be expected to produce are subject 23 to the credibility assessment of an ALJ. 24 F.3d 853, 856-57 (9th Cir. 2001). An ALJ s assessment of pain severity 25 and claimant credibility is entitled to great weight. 26 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 27 528, 531 (9th Cir. 1985). 28 not reject a claimant s subjective complaints based solely on a lack Rollins v. Massanari, 261 Weetman v. When determining credibility, the ALJ may 4 1 of 2 severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see 3 also, Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 4 order 5 credible, an ALJ must specifically make findings that support this 6 conclusion, 7 convincing reasons. 8 Secretary of Health & Human Services, 846 F.2d 581, 584 (9th Cir. 1988) 9 (requiring the ALJ to put forward specific reasons for discrediting 10 objective to medical find that Bunnell, evidence a to claimant s 947 F.2d at fully corroborate subjective 345, and the complaints provide alleged are clear In not and Rollins, 261 F.3d at 857; see also Varney v. a claimant s subjective complaints). 11 The absence of objective evidence to corroborate a claimant s 12 subjective complaints, however, does not by itself constitute a valid 13 reason for rejecting her testimony. Tonapetyan v. Halter, 242 F.3d at 14 1147. 15 subjective testimony of excess symptomology. 16 Apfel, 161 F.3d 599, 602 (9th Cir. 1998). 17 However, weak objective support can undermine a claimant s Implementing regulations prescribe See e.g., Tidwell v. factors which should be 18 considered in determining credibility as to self-reported pain and 19 other symptoms. 20 considered are specified to include a claimant s daily activities 21 ( ADL ); the location, duration, frequency and intensity of pain or 22 other symptoms; precipitating and aggravating factors; the type, 23 dosage, effectiveness and side effects of any medication taken; 24 treatment received; and measures taken to relieve pain. In 20 C.F.R. §404.1529(c)(3), the factors to be 25 The regulations also specify that consideration should be given 26 to inconsistencies or contradictions between a claimant s statements 27 and the objective evidence: 28 We will consider your statements about the intensity, 5 1 persistence, and limiting effects of your symptoms, and we 2 will evaluate your statements in relation to the objective 3 medical 4 conclusion as to whether you are disabled. We will consider 5 whether there are any inconsistencies in the evidence and 6 the extent to which there are any conflicts between your 7 statements and the rest of the evidence, including your 8 history, the signs and laboratory findings, and statements 9 by your treating or nontreating source or other persons 10 11 evidence and other evidence, in reaching a about how your symptoms affect you. (20 C.F.R. §404.1529(c)(4).) 12 13 C. Analysis. 14 The factors relied upon by the ALJ, either alone or in 15 conjunction with each other, do not amount to substantial evidence to 16 depreciate Plaintiff s credibility as to her pain symptoms. 17 The ALJ first determined that the objective medical findings 18 generally do not 19 allegations. 20 summarized various medical evidence; however, this evidence largely 21 goes to Plaintiff s pain in her right hip which, she concedes, was 22 ameliorated through the later surgery. 23 adequately discuss are medical records evidencing that Plaintiff 24 suffered severe pain in her left knee and lower back which continued 25 after the hip surgery. (See, e.g., AR at 280, 288.) (AR substantiate 24.) the extent Thereafter, in of the the [Plaintiff s] decision, the ALJ What the ALJ failed to 26 Depreciating Plaintiff s credibility because of her assertion 27 that she requires the use of crutches or a cane (AR 23) does not 28 correctly summarize the record. Plaintiff indicated that she used 6 1 crutches in 2005, before her total hip replacement. (AR 296.) Her 2 testimony was that she sometimes has to use a cane (AR 56), but this 3 is not equivalent to a statement that she requires use of a cane to 4 ambulate. 5 Concerning side effects of medication, while there is substantial 6 evidence in the record, both from Plaintiff s statements that she made 7 in the administrative proceedings, to complaints she made to her 8 doctors, that she has serious side effects from medications, these 9 were simply ignored in the credibility analysis. Yet, an analysis of 10 medication side effects is required both by the Commissioner s own 11 regulations and by controlling Ninth Circuit law. (See 20 C.F.R. 12 §§404.1529(c)(3), 416.929(c) (2008); Bunnell v. Sullivan, 947 F.2d 13 341, 345 (9th Cir. 1991)(en banc).) 14 Somewhat puzzling is the Commissioner s argument that because 15 there is no evidence in Plaintiff s medical history of any respiratory 16 impairment, and Plaintiff made a connection at the hearing between her 17 pain 18 insufficient evidence of objective medical evidence to substantiate 19 any pain finding at all. 20 Plaintiff fails to meet the first prong of the credibility assessment 21 test set forth in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986). (See 22 JS at 9.) Unfortunately, while the Commissioner has the obligation to 23 defend the ALJ s decision, he appears to be asserting that the 24 decision itself was incorrect. 25 that Plaintiff had met the first prong of the Cotton test. (AR at 23: 26 I find that the [Plaintiff s] medically determinable impairments 27 could reasonably be expected to produce the alleged symptoms, but that 28 the [Plaintiff s] statements concerning the intensity, persistence and and what she termed breathing problems (AR 55), there is The Commissioner therefore argues that The Court notes that the ALJ found 7 1 2 limiting effects of these symptoms are not entirely credible. ) For the reasons stated, the ALJ s credibility assessment fails to 3 satisfy 4 regulations and law. 5 constitute clear and convincing evidence to rebut or depreciate 6 Plaintiff s assertions of her own subjective pain. 7 matter 8 Memorandum Opinion. Plaintiff s pain complaints will be accorded full 9 credibility. (See, Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 10 11 the will well-established be standards set forth in applicable The reasons enumerated in the decision do not remanded for new hearing Consequently, the consistent with 2007).) IT IS SO ORDERED. 12 13 14 DATED: September 3, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 this
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