Kym Moore v. Michael J. Astrue, No. 2:2009cv00499 - Document 18 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KYM D. MOORE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 09-499-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on January 27, 2009, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 March 10, 2009, the parties consented to proceed before the undersigned 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 parties filed a Joint Stipulation on September 11, 2009, in which: 24 plaintiff seeks an order reversing the Commissioner s decision remanding 25 the matter for further administrative proceedings; and defendant seeks 26 an order affirming the Commissioner s decision. The Court has taken the 27 parties Joint Stipulation under submission without oral argument. 28 On The SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On September 21, 2005, plaintiff filed an application for SSI, 4 alleging an inability to work since August 1, 2001, due to thoracic 5 outlet syndrome,1 carpal tunnel syndrome, tendonitis, depression, and 6 post-traumatic stress syndrome. 7 82, 85-86.) 8 and a clerical assistant. (Administrative Record ( A.R. ) 58-63, Plaintiff has past relevant work experience as a secretary (A.R. 20, 75, 86.) 9 10 The Commissioner denied plaintiff s application initially (A.R. 50- 11 54), and on August 29, 2007, plaintiff, who was represented by counsel, 12 testified at a hearing before Administrative Law Judge Charles L. Hall 13 ( ALJ ). 14 plaintiff s 15 subsequently denied plaintiff s request for review of the ALJ s decision 16 (A.R. 4-6). 17 (A.R. 346-73.) application On October 10, 2007, (A.R. 16-21), and the the ALJ Appeals denied Council SUMMARY OF ADMINISTRATIVE DECISION 18 19 The ALJ found that plaintiff has not engaged in substantial gainful 20 activity since September 21, 2005, her application date. (A.R. 17.) 21 The ALJ determined that plaintiff has severe bilateral carpal tunnel 22 syndrome, but she does not have any impairment or combination of 23 impairments that meet or medically equal one of the listed impairments 24 in 20 C.F.R. Part 404, Subpart P, Appendix 1. 25 found that plaintiff does not have a severe mental impairment. (A.R. 17-18.) The ALJ (A.R. 26 1 27 28 Thoracic outlet syndrome is a condition presenting with arm complaint of pain, numbness, tingling and weakness. The cause is pressure in the neck against the nerves and blood vessels that go to the arm. Http://www.webmd.com 2 1 18.) 2 The 3 ALJ concluded that plaintiff s medically determinable 4 impairments could reasonably be expected to produce the alleged symptoms 5 about 6 concerning the intensity, persistence, and limiting effects of her 7 symptoms 8 determined that plaintiff is capable of performing her past relevant 9 work as a secretary and clerical assistant. which are plaintiff not complained, entirely but that credible. plaintiff s (A.R. 19-20.) statements The ALJ (A.R. 20.) 10 11 Accordingly, the ALJ found that plaintiff has not been under a 12 disability, as defined in the Social Security Act, since September 21, 13 2005, the date her application was filed. (A.R. 21.) 14 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 18 decision to determine whether it is free from legal error and supported 19 by substantial evidence in the record as a whole. 20 F.3d 625, 630 (9th Cir. 2007). 21 evidence as a reasonable mind might accept as adequate to support a 22 conclusion. 23 a mere scintilla but not necessarily a preponderance. 24 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 25 record can constitute substantial evidence, only those reasonably 26 drawn from the record will suffice. 27 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 28 3 The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner s] conclusion. 5 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities. 9 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 10 11 The Court will uphold the Commissioner s decision when the evidence 12 is susceptible to more than one rational interpretation. Burch v. 13 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 14 review only the reasons stated by the ALJ in his decision and may not 15 affirm the ALJ on a ground upon which he did not rely. 16 at 630; see also Connett, 340 F.3d at 874. 17 the Commissioner s decision if it is based on harmless error, which 18 exists only when it is clear from the record that an ALJ's error was 19 inconsequential to the ultimate nondisability determination. Robbins 20 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 21 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 22 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 23 24 DISCUSSION 25 26 Plaintiff alleges the following three issues: (1) whether the ALJ 27 erred in finding that her only severe impairment is bilateral carpal 28 tunnel syndrome; (2) whether the ALJ erred in finding that plaintiff s 4 1 mental impairment is not severe; and (3) whether the ALJ properly 2 weighed plaintiff s testimony and made proper credibility findings. 3 (Joint Stipulation ( Joint Stip. ) at 3.) 4 are addressed together below. Plaintiff s first two issues 5 6 7 I. The ALJ s Finding That Plaintiff Suffers From Only One Severe Impairment Was Improperly Made. 8 9 An impairment or combination of impairments can be found not 10 severe only if the evidence establishes a slight abnormality that has 11 no more than a minimal effect on [a claimant s] ability to work. 12 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)(citing Social 13 Security Ruling 85-28 and Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 14 1988)); 15 impairments is not severe if it does not significantly limit your 16 physical or mental ability to do basic work activities. ); see also 17 Bustamante v. Massanari, 262 F.3d 949, 955-56 (9th Cir. 2001)(ALJ s 18 finding that claimant s mental impairment was not severe was not 19 supported 20 professional who examined claimant found significant mental problems). 21 The severity requirement is merely a de minimis screening device to 22 dispose of groundless claims. Edlund v. Massanari, 253 F.3d 1152, 1158 23 (9th Cir. 2001)(citing Smolen, 80 F.3d at 1290). 24 denied 25 impairments are not medically severe] is clearly established by medical 26 evidence. 20 at C.F.R. by § 416.921 substantial step two only ( [a]n evidence, if . . . impairment because a or combination every finding mental 28 5 health [A] claim may be [that the Social Security Ruling 85-28 (emphasis added). 27 of relevant A. 1 Plaintiff s Physical Impairments Of The Neck and Shoulder 2 The ALJ found that plaintiff suffered from only one severe 3 4 physical impairment, bilateral carpal tunnel syndrome. 5 Plaintiff 6 plaintiff s claim that she also suffers from a severe neck and 7 shoulder impairment. contends that substantial evidence of (A.R. 17.) record supports (Joint Stip. at 4.) 8 9 The record demonstrates that, in January 2001, plaintiff was 10 examined by Eric Hsu, M.D., at UCLA Medical Center, for complaints of 11 pain in her neck, shoulder, right hand, and finger. 12 examination, Dr. Hsu found decreased range of motion in plaintiff s neck 13 with tenderness on palpation over the paravertebral region on C4-5 and 14 C6. 15 presentation of thoracic outlet syndrome, and may benefit from trigger 16 point injection over the neck and shoulder region. 17 April 2001, plaintiff was again examined by Dr. Hsu, who noted decreased 18 neck range of motion on flexion, extension, and lateral rotation. (A.R. 19 105.) Dr. Hsu opined that plaintiff may benefit from cervical epidural 20 steroid injection under fluoroscopy guidance, physical therapy, and 21 acupuncture. 22 underwent a series of cervical epidural injections, which offered 23 temporary relief, but plaintiff reported that, in September 2001, her 24 shoulder pain was a 9 on a scale of 1 to 10, with 10 being the highest 25 level of pain. 26 plaintiff and found that she continued to have tenderness and decreased 27 range of motion in her neck and right shoulder. 28 was diagnosed with right rotator cuff tendinitis. (A.R. 107-08.) (Id.) (A.R. 107.) Upon Dr. Hsu opined that plaintiff has clinical (A.R. 107.) In Plaintiff followed Dr. Hsu s recommendations and (A.R. 100.) In January 2002, Dr. Hsu again examined 6 (A.R. 95.) (Id.) Plaintiff In July 2003, plaintiff was examined by Amy Akers, M.D., at UCLA 1 2 Neurological Services, for right upper extremity pain. 3 Upon physical examination, Dr. Akers ruled out thoracic outlet syndrome, 4 but recommended that plaintiff undergo an EMG and Nerve Conduction 5 Study, so that any contribution of thoracic outlet syndrome can be 6 assessed 7 radiculopathy. 8 whether plaintiff underwent the EMG and Nerve Conduction Study. and plaintiff (A.R. 322.) can also be evaluated (A.R. 320.) for cervical It is unclear from a review of the record 9 10 In October 2003, plaintiff underwent an MRI of her right shoulder. 11 (A.R. 234.) 12 thickening and abnormal signal intensity, consistent with tendinopathy 13 and mild acromiclavicular joint osteoarthritis. Plaintiff s films indicated [d]istal supraspinatus tendon (A.R. 234-35.) 14 15 At the administrative hearing, medical expert Alan Frank, M.D., 16 testified that plaintiff has two physical conditions: 17 syndrome in both hands and a problem involv[ing] her neck and shoulder, 18 her right shoulder. 19 does have persistent pain in her neck, traveling into her -- into the 20 back of her right shoulder, and into the -- and onto her upper right 21 arm. (A.R. 363.) carpal tunnel Dr. Frank testified that plaintiff (A.R. 364.) 22 23 In his decision, the ALJ failed to discuss any evidence pertaining 24 to plaintiff s neck and shoulder pain. 25 required to identify every piece of evidence, he had a duty to summarize 26 and weigh the significant, relevant evidence regarding plaintiff s neck 27 and shoulder pain and to provide a rationale for his finding that 28 plaintiff has no severe neck and/or shoulder impairment. 7 Although the ALJ was not The ALJ s 1 failure to do so here constitutes error. 2 B. 3 Plaintiff s Mental Impairments: Depression and Post-Traumatic Stress Disorder ( PTSD ) 4 5 6 The ALJ found that [plaintiff s] depression is a non-severe 7 impairment. (A.R. 18.) In describing the evidence pertaining to 8 plaintiff s claimed depression, the ALJ stated that: 9 treatment records are sparse and consist primarily of non-specialist mental health 10 reports 11 longitudinal record of mental health therapy and treatment from a 12 psychiatrist. 13 or group therapy at any mental healthcare facility. 14 the ALJ did not address plaintiff s claimed PTSD at all and inadequately 15 addressed plaintiff s depression. of prescribed anti-depressant medication. There is no Likewise, there is no record of individualized treatment (Id.) However, 16 17 The ALJ s brief discussion of the evidence pertaining to 18 plaintiff s depression does not fairly address this claimed impairment. 19 Medical records from the UCLA Family Health Center establish that 20 plaintiff s depression began in 2001, as a result of witnessing her son 21 being robbed and shot five times in their home. 22 Plaintiff was prescribed anti-depressants, including Zoloft and Paxil. 23 (Id.) 24 psychiatrist Anita E. Gray, M.D., who diagnosed plaintiff with Major 25 Depression. 26 consultative psychiatric examination with Norma Aguilar, M.D., who (A.R. 115, 177-181.) Subsequent to her son s shooting, plaintiff was treated by (A.R. 340.) In November 2002, plaintiff underwent a 27 28 8 1 diagnosed plaintiff with dysthymia,2 mild, and PTSD. 2 Critically, Dr. Aguilar opined that plaintiff would have mild to 3 moderate 4 workplace setting. (Id.) In 2003, plaintiff was prescribed Effexor for 5 her depression and referred for psychological counseling. 6 In June 2004, plaintiff s physician increased her dose of Effexor and 7 opined that plaintiff s anxiety and depression were uncontrolled. (A.R. 8 160-61.) In August 2004, plaintiff s physician noted that plaintiff had 9 a decreased libido with a lack of concentration and anhedonia.3 difficulty maintaining persistence and pace (A.R. 117.) in a normal (A.R. 167.) (A.R. 10 160.) In March 2006, plaintiff complained of feeling terrible, very 11 depressed, sad, [and she] contemplated suicide. (A.R. 296.) Plaintiff 12 was prescribed Wellbutrin. (A.R. 297.) 13 At the administrative hearing, the medical expert, psychiatrist 14 15 Jack Rothberg, M.D., 16 impairments: depression, which was mild; and PTSD of a mild to moderate 17 level and which falls into the anxiety category. 18 Rothberg 19 plaintiff was taking, and had been taking for quite some time, several 20 anti-depressant and anti-anxiety medications. 21 asked to consider Dr. Gray s diagnosis of Major Depression, Dr. 22 Rothberg did not disagree with that diagnosis. reviewed testified plaintiff s that medical plaintiff records has two mental (A.R. 366.) and confirmed (A.R. 367-68.) Dr. that When (A.R. 340, 368-69.) 23 24 25 2 26 Dysthymia is a psychological disorder characterized by a chronic but mild depressive state that has been present in an individual for more than two years. Http:www.webmd.com. 27 3 28 Anhedonia is a symptom of depression characterized by a markedly diminished interest or pleasure in almost all activities nearly every day. Http:www.webmd.com. 9 1 Consistently with Dr. Rothberg s testimony and her medical records, 2 plaintiff testified that, as of the date of the hearing, she was being 3 treated for depression and PTSD at UCLA. 4 that, 5 nightmares, is very inward now, and does not associate with people 6 outside of her family. despite taking Wellbutrin and (A.R. 354-55.) Paxil, she She testified still experiences (A.R. 355-56.) 7 8 In sum, the record as a whole, including the records from UCLA, 9 the letter from Dr. Gray, Dr. Aguilar s consultative report, and the 10 medical expert s testimony, strongly suggest that plaintiff s mental 11 impairments would have more than a minimal effect on her ability to 12 function in the work place. 13 Ruling 85-28. 14 consider her depression adequately constitute reversible error. Smolen, 80 F.3d at 1290; Social Security The ALJ s failure to address plaintiff s PTSD and to 15 16 II. The ALJ Failed To Evaluate Plaintiff s Credibility Properly. 17 18 The law is well-settled that, once a disability claimant produces 19 evidence of an underlying impairment that is reasonably likely to be the 20 source of her subjective symptom(s), all subjective testimony as to the 21 severity of the symptoms must be considered. 22 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 23 (9th Cir. 2001)(en banc); see also 20 C.F.R. § 416.929(a) (explaining 24 how pain and other symptoms are evaluated). Unless there is affirmative 25 evidence showing that the claimant is malingering, the ALJ s reasons for 26 rejecting the claimant s subjective symptom testimony must be clear and 27 convincing. 28 Further, the ALJ s credibility findings must be sufficiently specific Moisa v. Barnhart, 367 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 10 1 to allow a reviewing court to conclude that the ALJ rejected the 2 claimant s testimony on permissible grounds and did not arbitrarily 3 discredit the claimant s testimony. Moisa, 367 F.3d at 885. 4 5 Both in her filings with the Commissioner and in her testimony, 6 plaintiff described various subjective symptoms from which she claims to 7 suffer. 8 wrists and problems moving her neck, because her neck pops a lot. 9 (A.R. 68, 360.) Plaintiff complained of numbness and tingling in her hands and Plaintiff also complained of significant pain in her 10 right neck and shoulder, which radiates down into her hands. (A.R. 11 320.) 12 together around the right shoulder. 13 testified that she stopped working due to weakness, tingling, and pain 14 in her hands. 15 surgery on her right hand and endured a lot of injections in her left 16 hand, which provided temporary relief, but that the weakness, tingling, 17 and pain in her hands and wrists returned. 18 Plaintiff testified that she: 19 household chores; and often drops glasses and plates, because she can t 20 hold on to [them]. 21 takes medication for depression and post-traumatic stress, which she 22 developed as a result of witnessing her son being robbed and shot in 23 2001, and she is treated at UCLA for those conditions. Plaintiff stated that she feels as though her bones are rubbing (A.R. 350.) (Id.) At the hearing, plaintiff She testified further that she underwent (A.R. 351-52, 359.) does not drive; requires assistance with (A.R. 352, 360.) Plaintiff also testified that she (A.R. 355.) 24 25 In his decision, the ALJ briefly summarized portions of plaintiff s 26 testimony and found that plaintiff s medically determinable impairments 27 could reasonably be expected to produce the alleged symptoms. 28 20.) However, the ALJ concluded that plaintiff s statements concerning 11 (A.R. 1 the intensity, persistence and limiting effects of these symptoms are 2 not entirely credible. 3 his 4 discernable, do not withstand scrutiny. adverse credibility (Id.) The reasons the ALJ cites in reaching determination, to the extent they are 5 6 7 The ALJ s entire analysis of plaintiff s credibility is as follows: 8 9 There was [sic] no laboratory or clinical findings to support 10 the severity of the restrictions alleged. 11 demonstrated medical pathology documented anywhere in the 12 record which would substantiate restricting the residual 13 functional capacity greater than that found herein. 14 limited activities of daily living are not attributable to a 15 medical condition. Also, there was no Further, 16 17 (A.R. 20.) 18 19 First, the ALJ s brief three-sentence credibility analysis falls 20 woefully short of the clear and convincing standard contemplated by 21 Ninth Circuit precedent. 22 plaintiff s 23 convincing. Second, the ALJ s vague assertion that plaintiff s limited 24 activities of daily living are not attributable to a medical condition, 25 is unclear and not sufficiently specific to allow a reviewing court to 26 conclude that the ALJ rejected plaintiff s testimony on permissible 27 grounds and did not arbitrarily discredit her testimony. See Moisa, 367 28 F.3d at 885. subjective The ALJ s articulated reasons for rejecting symptom testimony are neither clear nor Finally, the ALJ s reliance on the lack of objective 12 1 medical evidence to support the degree of pain alleged, as a basis for 2 finding plaintiff s testimony regarding her subjective symptoms not 3 credible, is misplaced, as the absence of objective medical evidence 4 cannot be the sole basis for rejecting a plaintiff s credibility, and 5 the ALJ failed to set forth any other clear and convincing reasons for 6 rejecting plaintiff s credibility. 7 (9th Cir. 1989); Stewart v. Sullivan, 881 F.2d 740, 743-44 (9th Cir. 8 1989). Fair v. Bowen, 885 F.2d 597, 601-02 9 10 Accordingly, the ALJ s adverse credibility finding, without setting 11 forth clear and convincing reasons for his rejection of plaintiff s 12 credibility, constitutes reversible error. 13 14 III. Remand Is Required. 15 16 The decision whether to remand for further proceedings or order an 17 immediate award of benefits is within the district court s discretion. 18 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 19 useful purpose would be served by further administrative proceedings, or 20 where the record has been fully developed, it is appropriate to exercise 21 this discretion to direct an immediate award of benefits. 22 ( the decision of whether to remand for further proceedings turns upon 23 the likely utility of such proceedings ). 24 outstanding issues that must be resolved before a determination of 25 disability can be made, and it is not clear from the record that the ALJ 26 would be required to find the claimant disabled if all the evidence were 27 properly evaluated, remand is appropriate. 28 13 Where no Id. at 1179 However, where there are Id. 1 Here, remand is the appropriate remedy to allow the ALJ the 2 opportunity to remedy the above-mentioned deficiencies and errors. See, 3 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 4 further proceedings is appropriate if enhancement of the record would be 5 useful); 6 1989)(remand 7 Specifically, on remand, the ALJ must: (1) address plaintiff s neck and 8 shoulder impairments and plaintiff s mental impairments, including her 9 depression and PTSD; and (2) provide reasons, if they exist and are in McAllister v. Sullivan, appropriate with the to requisite 888 remedy legal F.2d 599, defects standards, 603 in (9th the for Cir. record). 10 accordance discrediting 11 plaintiff s pain testimony. 12 of all of plaintiff s impairments, whether severe or not, on her 13 ability to engage in and sustain full-time work. 14 Shalala, 9 F.3d 813, 817 (9th Cir. 1993)(ALJ must consider all factors 15 that might have a significant impact on claimant's ability to work); see 16 also 20 C.F.R. § 404.1545(e) ( we will consider the limiting effects of 17 all your impairment(s), even those that are not severe ). Further, the ALJ must consider the impact See Erickson v. 18 19 CONCLUSION 20 21 Accordingly, for the reasons stated above, IT IS ORDERED that the 22 decision of the Commissioner is REVERSED, and this case is REMANDED for 23 further proceedings consistent with this Memorandum Opinion and Order. 24 /// 25 /// 26 /// 27 /// 28 /// 14 1 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 2 copies of this Memorandum Opinion and Order and the Judgment on counsel 3 for plaintiff and for defendant. 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 8 DATED: August 10, 2010 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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