Nafis Rashadeem v. Michael J. Astrue, No. 2:2009cv07438 - Document 23 (C.D. Cal. 2010)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to Defendant for payment of benefits for the period of August 23, 2003, to January 1, 2007. (SEE ORDER FOR FURTHER DETAILS) (lmh)
Download PDF
<![CDATA[
Nafis Rashadeem v. Michael J. Astrue Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 NAFIS RASHADEEM, 13 Plaintiff, 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CV 09-7438 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks 21 review of the Commissioner’s denial of disability benefits. As 22 discussed below, the court finds that the Commissioner’s decision 23 should be reversed and this matter remanded for payment of benefits 24 for the closed period of August 23, 2003, to January 1, 2007. 25 I. BACKGROUND 26 Plaintiff Nafis Rashadeem was born on March 5, 1961, and was 27 forty-five years old on the date that his alleged period of disability 28 1 Dockets.Justia.com 1 expired. [Administrative Record (“AR”) 63, 423.] He has two years of 2 college education and past relevant work experience as an automobile 3 salesperson, technical support and construction worker. [AR 374, 465- 4 466.] 5 apnea and obesity. [AR 374.] Plaintiff alleges disability on the basis of a stroke, sleep 6 II. PRIOR PROCEEDINGS 7 Plaintiff applied for a period of disability and disability 8 insurance benefits (“DIB”) and supplemental security income (“SSI”) on 9 June 10, 2004, alleging disability since August 23, 2003. [AR 423.] 10 After the application was denied initially and upon reconsideration, 11 Plaintiff requested an administrative hearing, which was held on March 12 8, 2006, before an Administrative Law Judge (“ALJ”). [AR 371.] 13 Plaintiff appeared with counsel, and testimony was taken from 14 Plaintiff and vocational expert Mr. Hatokeyama. [AR 372.] The ALJ 15 denied benefits in a decision dated April 12, 2006. [AR 338-45.] On 16 October 4, 2006, the Appeals Council remanded the matter for further 17 administrative proceedings. [AR 356-57.] 18 hearing was held on January 22, 2007. [AR 394.] Plaintiff appeared 19 with counsel, and testimony was taken from Plaintiff. [AR 395.] The 20 ALJ denied benefits in a decision dated March 13, 2007. [AR 12-21.] 21 When the Appeals Council denied review on May 29, 2007, the ALJ’s 22 decision became the Commissioner’s final decision. [AR 7.] 23 A second administrative Plaintiff filed a complaint in the district court on July 26, 24 2007 (Case No. CV 07-4766 CW). 25 decision and order remanding the matter for further administrative 26 proceedings. 27 28 On April 15, 2008, the court issued a A third administrative hearing was held on January 26, 2009, before a new ALJ. [AR 455.] Plaintiff appeared with counsel, and 2 1 testimony was taken from Plaintiff and vocational expert June Hagen. 2 [AR 456.] 3 Plaintiff amended his application to a closed period of disability 4 from August 23, 2003, to January 1, 2007. [AR 450.] The ALJ denied 5 benefits in a decision dated March 26, 2009. [AR 420.] 6 Because Plaintiff had resumed working on January 1, 2007, The present complaint was lodged on October 14, 2009, and filed 7 on October 15, 2009. 8 Plaintiff’s Administrative Record (“AR”). 9 parties filed their Joint Stipulation (“JS”) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. III. 13 14 On June 10, 2010, Defendant filed an Answer and On September 21, 2010, the This matter has been taken under STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 15 Commissioner’s decision to deny benefits. 16 ALJ’s) findings and decision should be upheld if they are free of 17 legal error and supported by substantial evidence. 18 court determines that a finding is based on legal error or is not 19 supported by substantial evidence in the record, the court may reject 20 the finding and set aside the decision to deny benefits. 21 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 22 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 23 F.3d 1157, 1162 (9th Cir. 24 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 25 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 26 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 27 28 The Commissioner’s (or However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, “Substantial evidence is more than a scintilla, but less than a preponderance.” Reddick, 157 F.3d at 720. 3 It is “relevant evidence 1 which a reasonable person might accept as adequate to support a 2 conclusion.” 3 a finding, a court must review the administrative record as a whole, 4 “weighing both the evidence that supports and the evidence that 5 detracts from the Commissioner’s conclusion.” 6 can reasonably support either affirming or reversing,” the reviewing 7 court “may not substitute its judgment” for that of the Commissioner. 8 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports 9 IV. Id. “If the evidence DISCUSSION 10 A. THE FIVE-STEP EVALUATION 11 To be eligible for disability benefits a claimant must 12 demonstrate a medically determinable impairment which prevents the 13 claimant from engaging in substantial gainful activity and which is 14 expected to result in death or to last for a continuous period of at 15 least twelve months. 16 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 17 Disability claims are evaluated using a five-step test: 18 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 19 20 21 22 23 24 25 26 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 28 4 1 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 2 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 3 C.F.R. § 404.1520, § 416.920. 4 “not disabled” at any step, there is no need to complete further 5 steps. 6 If a claimant is found “disabled” or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 7 subject to the presumption that Social Security hearings are non- 8 adversarial, and to the Commissioner’s affirmative duty to assist 9 claimants in fully developing the record even if they are represented Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 10 by counsel. 11 1288. 12 made, and the burden shifts to the Commissioner (at step five) to 13 prove that, considering residual functional capacity (“RFC”)1, age, 14 education, and work experience, a claimant can perform other work 15 which is available in significant numbers. 16 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. If this burden is met, a prima facie case of disability is Tackett, 180 F.3d at 1098, 17 B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE 18 Here, the ALJ found that Plaintiff had not engaged in substantial 19 gainful activity from October 23, 2003, to January 1, 2007 (step one); 20 that Plaintiff had “severe” impairments, namely a history of 21 cerebrovascular accident, obesity, obstructive sleep apnea, 22 hypertension, and adjustment disorder (step two); and that Plaintiff 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing “exertional” (strength-related) and “nonexertional” limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 did not have an impairment or combination of impairments that met or 2 equaled a “listing” (step three). 3 the period in question, Plaintiff had an RFC for light work, except 4 for any work involving more than simple two to three step tasks or 5 requiring sustained periods of concentration. [AR 427.] The vocational 6 expert testified that a person with Plaintiff’s RFC could perform 7 Plaintiff’s past relevant work as a construction site cleaner (step 8 four). [AR 431.] 9 “disabled” as defined by the Social Security Act. [Id.] [AR 426.] The ALJ found that for Accordingly, the ALJ found that Plaintiff was not 10 C. 11 The parties’ Joint Stipulation identifies the following disputed 12 issues: 13 1. ISSUES IN DISPUTE Whether the ALJ erred in the evaluation of Plaintiff’s 14 obstructive sleep apnea impairment and its impact on his 15 ability to work; 2. 16 Whether the ALJ erred in the evaluation of Plaintiff’s 17 obesity impairment and its impact on his ability to work; 18 and 19 3. Whether the ALJ erred in the credibility findings. 20 [JS 3.] 21 As discussed below, Issue Three is dispositive. 22 D. 23 At the administrative hearing of January 22, 2007, Plaintiff ISSUE THREE: CREDIBILITY EVALUATION 24 testified, among other things, that he could only walk about a block, 25 and could not work at a job that requires him just to sit. [AR 406- 26 407.] 27 falls asleep at least three to four times during the day, and had lost 28 twelve percent feeling on his right side after a stroke. [AR 459-460, He also testified that he is continuously fatigued and tired, 6 1 461, 464.] 2 The ALJ referenced this portion of Plaintiff’s testimony in the 3 administrative decision and stated the following reasons for finding 4 that Plaintiff’s statements were “not credible to the extent they are 5 inconsistent with the . . . residual functional capacity assessment.” 6 [AR 430.] 7 demonstrate that the claimant was physically or mentally fatigued to 8 the degree he alleges,” explaining that with the exception of Dr. 9 Scott Kopoian, an examining psychiatrist, none of the doctors First, the ALJ stated that the medical record “fails to 10 mentioned “fatigue related symptoms.” [AR 431.] 11 with assuming Plaintiff had fatigue, Dr. Kopoian found that Plaintiff 12 was still able to “perform 2-3 step tasks and interact appropriately 13 with others.” [Id.] 14 always comply with taking anti-hypertensive medication or in losing 15 weight with diet and exercise, as recommended. [Id.] 16 found that Plaintiff’s testimony about his limitations were 17 inconsistent with Plaintiff’s activities of daily living as reported 18 to Dr. Kopoian.2 [Id.] 19 In addition, even Second, the ALJ found that Plaintiff did not Third, the ALJ The standard in the Ninth Circuit for evaluations of subjective 20 symptom testimony in Social Security disability cases requires, first, 21 that the claimant produce medical evidence of an underlying impairment 22 which is reasonably likely to be the cause of the alleged symptom; 23 when this evidence is produced, the Commissioner may not reject a 24 claimant’s credibility without specifically making findings which 25 26 27 28 2 Plaintiff told Dr. Kopoian he “performs all activities of daily living without assistance,” but specifically stated that he visits the doctor; reads the newspaper; sometimes shops for groceries, usually with someone else; occasionally visits malls; and stopped going to movies. [AR 279.] 7 1 support that conclusion. 2 Cir. 1991)(en banc)(affirming standard of Cotton v. Bowen, 799 F.2d 3 1403, 1407 (1986), for review of ALJ evaluations of pain and 4 subjective symptom testimony). 5 state “clear and convincing” reasons that include a specific statement 6 of which symptom testimony is not credible and what facts in the 7 record lead to that conclusion. 8 (9th Cir. 1996)(citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 9 1993)); see also Lester v. Chater, 81 F.3d at 834 (“For the ALJ to 10 reject the claimant’s complaints, [the ALJ] must provide specific, 11 cogent reasons for the disbelief”). 12 not need to be affirmed by objective medical evidence, as long as the 13 pain is “associated with such an impairment.” Magallanes v. Bowen, 881 14 F.2d 747, 755 (9th Cir. 1989). 15 consider certain factors in evaluation of a claimant’s credibility: 16 1) ordinary techniques of credibility evaluation; 2) unexplained or 17 inadequately explained failure to seek treatment or to follow 18 prescribed activities; and 3) daily activities. See Smolen, 80 F.3d at 19 1284. 20 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th The credibility determination must Smolen v. Chater, 80 F.3d 1273, 1284 A claimant’s subjective pain does On the other hand, the ALJ may Here, Plaintiff satisfied the initial requirement of producing 21 medical evidence of an underlying impairment to warrant such an 22 evaluation. 23 reasonably associated with such impairments. 24 Plaintiff has sleep apnea, and that fatigue would be associated with 25 such an impairment. 26 Moreover, the pain that Plaintiff is experiencing is There is no dispute that Accordingly, the Commissioner must provide “clear and convincing” 27 reasons to discount Plaintiff’s testimony. 28 out that Plaintiff failed to carry out prescribed treatment by not 8 The ALJ initially pointed 1 taking anti-hypertensive medication. 2 medication plans is “a factor that the ALJ can consider in his 3 credibility analysis.” 4 Ibrahim, one of Plaintiff’s treating physicians, had stated once that 5 Plaintiff poorly complied with his medication. [AR 251.] 6 this single, isolated statement from a voluminous record is not a 7 “clear and convincing” reason to establish that Plaintiff’s alleged 8 limitations are not as severe as he testified. 9 Lack of compliance with Tonapetyan, 242 F.3d at 1148. Dr. Albeer However, Plaintiff’s non-compliance in losing weight with diet and 10 exercise is also not a clear and convincing reason to reject 11 Plaintiff’s testimony. 12 Ibrahim recommended to Plaintiff that he lose weight. 13 253.] 14 Plaintiff for sleep apnea, had stated that sleep apnea is worsened by 15 obesity, and therefore, Plaintiff should be encouraged to lose weight. 16 [AR 235.] 17 30 to 40 pounds and was able to return to work, it would be reasonable 18 to conclude that Plaintiff’s physical functioning would have improved 19 if he had lost weight earlier by complying with the doctors’ 20 recommendations. [AR 431.] 21 According to the record, Drs. Brandes and [AR 235-236, Dr. Brandes, who had specifically evaluated and treated The ALJ determined that since Plaintiff did eventually lose The ALJ’s statement wrongfully assumes that since Plaintiff later 22 lost thirty to forty pounds, he also had the ability to lose the same 23 amount of weight during the relevant period. 24 weight is not necessarily amenable to a time schedule despite diet, 25 exercise, or change in lifestyle. 26 held that, “We will rarely use ‘failure to follow prescribed 27 treatment’ for obesity to deny or cease benefits,” in light of the 28 generally low success rate of obesity treatment, “despite the efforts The ability to lose That is why the Ninth Circuit has 9 1 of the individual to maintain the loss.” 2 636-637 (9th Cir. 2007) (citing Social Security Ruling (“SSR”) 02-1p, 3 2000 WL 628049 at *2). 4 Orn v. Astrue, 495 F.3d 625, “Before failure to follow prescribed treatment for obesity can 5 become an issue in a case, we must first find that the individual is 6 disabled because of obesity or a combination of obesity and another 7 impairment(s).” Id. at 636. 8 disabled for the period in question, so the ALJ is precluded “from 9 considering the effect of any failure to follow treatment for Here, Petitioner had not been found 10 obesity.” Id. 11 must be “prescribed.” Id. at 637. 12 individual “should” lose weight and is “advised” to exercise is not 13 enough to be considered a “prescribed treatment.” Id. 14 not clearly indicate that Plaintiff was directed to diet or exercise 15 as prescribed treatment. 16 there was a behavioral weight loss program available at the hospital. 17 [AR 235.] 18 to lose weight is not a clear and convincing reason to find 19 Plaintiff’s testimony not credible. 20 Moreover, the treatment for obesity in this context A doctor’s statement that an The record does At most, one of the doctors suggested that Accordingly, Plaintiff’s failure to follow a recommendation Second, the ALJ found that Plaintiff’s testimony was inconsistent 21 with his daily activities. [AR 431.] 22 Kopoian that he “performs all activities of daily living without 23 assistance,” such activities appeared to be limited to visiting the 24 doctor, reading the newspaper, shopping for groceries (usually with 25 someone else), and occasional visits to the mall. [AR 279.] 26 well-settled that a claimant is not required to be “utterly 27 incapacitated” since “many home activities are not easily transferable 28 to what may be the more grueling environment of the workplace.” Fair 10 Although Petitioner told Dr. It is 1 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 2 that Plaintiff’s ability to read the newspaper, shop for groceries 3 with others, and occasionally visit malls is transferable to a work 4 environment. 5 Cir. 2001) (holding that the ALJ erred in relying on the claimant’s 6 testimony that she was able to go grocery shopping with assistance, 7 walk approximately an hour in the malls, get together with her 8 friends, play cards, swim, watch television, read, and exercise at 9 home because those activities did not “consume a substantial part of” Here, it is not clear See Vertigan v. Halter, 260 F.3d 1044, 1049-1050 (9th 10 her day and were not necessarily transferable to a work setting). 11 Hence, this is not a clear and convincing reason to reject Plaintiff’s 12 testimony. 13 Finally, the ALJ cited lack of objective medical evidence to 14 corroborate “that the claimant was physically or mentally fatigued to 15 the degree he alleges.” 16 not discredit a claimant’s allegations of the severity of pain solely 17 on the ground that the allegations are unsupported by objective 18 medical evidence. 19 without regard to whether this final reason was clear and convincing, 20 the other reasons were not, as discussed previously; therefore, this 21 ground is inadequate to support the Commissioner’s credibility 22 determination. It is well-settled, however, that an ALJ may Bunnell v. Sullivan, 947 F.2d at 345. Here, 23 E. REMAND FOR PAYMENT OF BENEFITS 24 The decision whether to remand for further proceedings is within 25 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 26 1175-1178 (9th Cir. 2000). 27 must be resolved before a determination can be made, and it is not 28 clear from the record that the ALJ would be required to find the Where there are outstanding issues that 11 1 claimant disabled if all the evidence were properly evaluated, remand 2 is appropriate. 3 be served by further proceedings, or where the record has been fully 4 developed, it is appropriate to exercise this discretion to direct an 5 immediate award of benefits. 6 further proceedings turns upon their likely utility). 7 Id. at 1179. However, where no useful purpose would Id. (decision whether to remand for In Plaintiff’s case, as discussed above, the credibility 8 determination was not supported by clear and convincing reasons. 9 Accordingly, Plaintiff’s testimony is credited as true. Id.; Benecke 10 v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Varney v. Sec. of 11 Health and Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). 12 Moreover, the vocational expert testified that a person with 13 Plaintiff’s testified limitations would be unable to perform gainful 14 employment in the national economy. [AR 471.] 15 of disability is mandated by the record, and an award of benefits for 16 the closed period of August 23, 2003, to January 1, 2007, is 17 appropriate. 18 V. Accordingly, a finding ORDERS 19 Accordingly, IT IS ORDERED that: 20 1. The decision of the Commissioner is REVERSED. 21 2. This action is REMANDED to Defendant for payment of benefits 22 23 24 for the period of August 23, 2003, to January 1, 2007. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 25 26 27 28 DATED: November 16, 2010 _______________________________ CARLA M. WOEHRLE United States Magistrate Judge 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
