Beatriz E. Lozano v. Michael J. Astrue, No. 2:2009cv01545 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION ND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the matter is remanded to the Commissioner at Step Five of the sequential analysis and for reevaluation of Lozano's credibility. (See attached order for further details.) (es)
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Beatriz E. Lozano v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 BEATRIZ E. LOZANO, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 09-1545 AGR MEMORANDUM OPINION AND ORDER Beatriz E. Lozano filed this action on March 11, 2009. Pursuant to 28 18 19 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge 20 Rosenberg on April 6 and April 8, 2009. (Dkt. Nos. 8-9.) On November 5, 2009, 21 the parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 Commissioner submitted the certified administrative record ( AR ). The Court 23 has taken the matter under submission without oral argument. Having reviewed the entire file, the Court remands this matter to the 24 25 Commissioner for further proceedings. 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On August 30 and September 2, 2004, respectively, Lozano filed 4 applications for Supplemental Security Income and Disability Insurance benefits 5 alleging a disability onset date of August 5, 2003. AR 21, 67-74. The 6 applications were denied initially and upon reconsideration. AR 43-46. An 7 Administrative Law Judge ( ALJ ) conducted a hearing on January 23, 2007, at 8 which Lozano and a vocational expert ( VE ) testified. AR 515-32. On January 9 30, 2007, the ALJ issued a decision denying benefits. AR 18-28. On January 27, 10 2009, the Appeals Council denied Lozano s request for review. AR 5-9. This 11 action followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 18 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the Court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 evidence is susceptible to more than one rational interpretation, the Court must 26 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 27 28 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found Lozano meets the insured status requirements through 12 December 31, 2008. AR 23. Lozano has the following severe impairments: 13 morbid obesity with obstructive sleep apnea; diabetes; hypertension; and 14 degenerative joint disease of the knees. AR 24. She has the residual functional 15 capacity to lift/carry 10 pounds occasionally, less than 10 pounds frequently, 16 stand/walk 2 hours, and sit 6 hours in an 8 hour day. She is able to stand or walk 17 for 1 hour continuously, and sit for 4 hours continuously. She is unable to climb 18 ladders, ropes or scaffolds. She is able to occasionally b[a]lance[,] stoop, kneel, 19 crouch or crawl. She should avoid all exposure to unprotected heights and 20 dangerous moving machinery. Id. (citation omitted). Lozano remains capable 21 of performing past relevant work as director, day care. AR 27. The ALJ s Findings 22 C. 23 To determine whether a claimant s testimony regarding subjective pain or 24 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 25 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine 26 whether the claimant has presented objective medical evidence of an underlying 27 impairment which could reasonably be expected to produce the pain or other 28 symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. Lozano s Subjective Symptom Testimony 3 1 1991) (en banc)). Here, the ALJ found that Lozano s medically determinable 2 impairments could reasonably be expected to produce the alleged symptoms. 3 AR 25. 4 Second, if the claimant meets this first test, and there is no evidence of 5 malingering, the ALJ can reject the claimant s testimony about the severity of her 6 symptoms only by offering specific, clear and convincing reasons for doing so. 7 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 8 determination, the ALJ must specifically identify what testimony is credible and 9 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 10 F.3d 968, 972 (9th Cir. 2006) (citation omitted). 11 Here, the ALJ found no malingering. [T]o discredit a claimant s testimony 12 when a medical impairment has been established, the ALJ must provide specific, 13 cogent reasons for the disbelief. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 14 2007) (citations and quotation marks omitted). The ALJ must cite the reasons 15 why the claimant s testimony is unpersuasive. Id. (citation and quotation marks 16 omitted). In weighing credibility, the ALJ may consider factors including: the 17 nature, location, onset, duration, frequency, radiation, and intensity of any pain; 18 precipitating and aggravating factors (e.g., movement, activity, environmental 19 conditions); type, dosage, effectiveness, and adverse side effects of any pain 20 medication; treatment, other than medication, for relief of pain; functional 21 restrictions; the claimant s daily activities; and ordinary techniques of credibility 22 evaluation. Bunnell, 947 F.2d at 346 (citing Social Security Ruling 88-13,1 23 quotation marks omitted). The ALJ may consider (a) inconsistencies or 24 discrepancies in a claimant s statements; (b) inconsistencies between a 25 26 27 28 1 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 4 1 claimant s statements and activities; (c) exaggerated complaints; and (d) an 2 unexplained failure to seek treatment. Thomas v. Barnhart, 278 F.3d 947, 958-59 3 (9th Cir. 2002). 4 The ALJ found that Lozano s statements concerning the intensity, 5 persistence and limiting effects of these symptoms are not entirely credible. AR 6 25. However, the ALJ did not state any reasons for discounting her credibility. 7 The ALJ s opinion, in pertinent part, states: 8 Of course, the claimant s complaints and her limitations, 9 have been noted and considered, and the residual functional 10 capacity, as determined in this decision, does include 11 limitations (some of which taken from the report of Dr. 12 Cohen) which show that the claimant s allegations have not 13 been totally disregarded or rejected. 14 15 AR 27. At the hearing in January 2007, Lozano testified that she is 5'4" and weighs 16 488 pounds. AR 520-21. She cannot sit for more than 15-20 minutes because 17 her legs start to go numb. AR 521. She cannot stand for more than 20 minutes 18 because her legs start to shake and cramp. AR 523. If she falls, she cannot get 19 up by herself. The last time she fell at home, the paramedics were called. AR 20 523-24. She cannot step up a curb by herself and cannot get on a bus. AR 524. 21 She cannot walk an entire block, and it takes her about 15 minutes, with rest 22 breaks, to walk from her house to the corner (which is about two houses away). 23 AR 522, 530. Lozano estimated that it took her about an hour to do a simple 24 load of dishes because she needs to take frequent breaks to sit down. AR 519- 25 20. She gets winded from taking clothes out of the washing machine and placing 26 them into the dryer, and from taking clothes out of the dryer and carrying them to 27 the living room. AR 520. She cannot do her own grocery shopping or banking. 28 AR 522. She has unstable balance on her knees. AR 526. She has sleep apnea 5 1 2 and falls asleep for several minutes several times per day. AR 521. At best, it appears from the opinion that the ALJ discounted this testimony 3 to the extent it was inconsistent with the examining physician s report on 4 November 14, 2003. AR 26. The examining physician noted that Lozano has a 5 moderate to significantly antalgic gait and significant lymphedema in the lower 6 extremities. AR 124. Unable to assess the examination due to the fact that the 7 patient was unable to go to the examination table due to the heavy weight. Id. 8 Nevertheless, the examining physician opined that Lozano could stand and walk 9 for two hours in an eight-hour day, can sit for six hours in an eight hours day. Id. 10 By contrast, Dr. Cheng treated Lozano during the period 2000-2006. In May 11 2006, Dr. Cheng noted that Lozano weighed 477 pounds. AR 392. Dr. Cheng 12 opined that Lozano could sit for one hour at one time, stand for one hour at one 13 time, and could not walk for any appreciable amount of time. AR 391. She could 14 occasionally lift or carry up to 5 pounds. Id. She could not use her feet for 15 pushing or pulling leg controls. Id. In June 2005, when Lozano weighed 491 16 pounds, another treating physician, Dr. Cohen, observed that it was very difficult 17 for Lozano to walk and she was short of breath with minimal activities. AR 389- 18 90. Lozano could sit for a total of four hours, stand for a total of one hour and 19 walk for a total of one hour in an eight-hour day. AR 388. Both treating 20 physicians opined that she was unable to work due to morbid obesity. AR 359, 21 394. The ALJ found the treating physicians opinions less persuasive because 22 they contrast[ed] sharply with other evidence of record. 2 AR 26. 23 24 25 26 27 28 2 Lozano does not challenge the validity of the ALJ s rejection of the treating physicians opinions. Because this matter is being remanded, the Court notes that one of the ALJ s reasons for discounting the treating physicians opinions that treating physicians may express opinions out of sympathy with their patients (AR 27) is not a valid basis for discounting a treating physician s opinion. See Reddick v. Chater, 157 F.3d 715, 725-26 (9th Cir. 1998) (ALJ s skepticism of a treating physician s credibility because physician was compassionate and supportive of the patient flies in the face of clear circuit precedent ); Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) ( The Secretary 6 1 In any event, even assuming the ALJ found the examining physician s 2 opinion more persuasive, inconsistency between objective medical evidence and 3 Lozano s degree of subjective symptoms cannot form the sole basis for 4 discounting her testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 5 The ALJ discounted Lozano s allegations of disabling pain in her back and 6 knees on the ground that there is no evidence that pain medication has been 7 prescribed by her doctors which suggests that her pain may not be as severe as 8 has been alleged. AR 26-27. This finding is not supported by substantial 9 evidence. The record contains x-rays indicating degenerative joint disease of 10 both knees and mild degenerative changes in the spine, and progress notes 11 assessing Lozano with knee and back pain. AR 132, 155, 316, 395, 439, 443-44, 12 451, 472-73. In addition, the record contains evidence of prescriptions for 13 medications and a referral for joint injection. AR 135 (medication for knee pain ), 14 479 (10/22/07 ibuprofen 600 mg and referral for joint injection). 15 16 The ALJ did not offer specific, clear and convincing reasons for discounting Lozano s credibility. 17 D. Remedy 18 Remand for further administrative proceedings is appropriate if 19 enhancement of the record would be useful. Conversely, where the record has 20 been developed fully and further administrative proceedings would serve no 21 useful purpose, the district court should remand for an immediate award of 22 benefits. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). A court must 23 analyze whether there are outstanding issues that must be resolved before a 24 determination of disability can be made, and whether it is clear from the record 25 that the ALJ would be required to find the claimant disabled were such evidence 26 credited. Id. 27 28 may not assume that doctors routinely lie in order to help their patients collect disability benefits. ) (citation and quotation marks omitted). 7 1 The VE testified that a person who could sit for 20 minutes at a time, stand 2 for 20 minutes at a time, and walk for about five minutes at a time could not 3 perform Lozano s past relevant work. AR 530. The ALJ inquired only about past 4 relevant work, and did not conduct a Step Five inquiry. Therefore, remand is 5 warranted at Step Five. When, as here, remand for further proceedings is 6 required before a disability determination can be made, the credit-as-true rule for 7 a claimant s credibility does not apply. Vasquez v. Astrue, 572 F.3d 586, 593 (9th 8 Cir. 2009). The other factors identified by Vasquez are also inapplicable. Lozano 9 is not of advanced age, and she has not experienced a severe delay in her 10 application. Id. at 593-94. However, the ALJ must reevaluate Lozano s 11 credibility. 12 IV. 13 ORDER 14 IT IS HEREBY ORDERED that the matter is remanded to the 15 Commissioner at Step Five of the sequential analysis and for reevaluation of 16 Lozano s credibility. 17 18 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 19 20 21 DATED: July 1, 2010 ALICIA G. ROSENBERG United States Magistrate Judge 22 23 24 25 26 27 28 8
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