Steven V. Johnson v. Commissioner of Social Security Administration, No. 2:2010cv07320 - Document 29 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. (ca)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 STEVEN V. JOHNSON, Plaintiff, 11 12 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. Case No. CV 10-7320-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for Disability 20 Insurance benefits ( DIB ). 21 Judge ( ALJ ) erred when he found that Plaintiff was not credible and 22 did not have a severe impairment and when he rejected the treating 23 doctor s opinion that Plaintiff was disabled. 24 discussed below, the Agency s decision is reversed and the case is 25 remanded for further proceedings. 26 27 28 II. He claims that the Administrative Law For the reasons SUMMARY OF PROCEEDINGS In 2008, Plaintiff applied for DIB, alleging that he was disabled as of April 1, 2001, due to anxiety and pain in his back, hips, neck, 1 and shoulders. (Administrative Record ( AR ) 103-04, 111, 115.) 2 Agency denied the application initially and on reconsideration. 3 Plaintiff then requested and was granted a hearing before an ALJ. 4 Plaintiff appeared with counsel and testified at the hearing on 5 January 22, 2010. 6 record discussion with the ALJ, Plaintiff amended his alleged onset 7 date from April 2, 2001 to November 30, 2006, giving him only a 31-day 8 window to establish disability since his date last insured was 9 December 31, 2006. (AR 19.) 10 denying benefits. (AR 8-14.) 11 Council, which denied review. 12 action.1 (AR 19-40.) 13 14 At the outset, following an off-the- The ALJ subsequently issued a decision Plaintiff appealed to the Appeals (AR 1-3.) III. A. 15 The He then commenced this ANALYSIS The Credibility Finding The essence of Plaintiff s testimony was that he was unable to 16 work due to pain. 17 not credible. 18 so. 19 (AR 24-35, 123-30.) the Court agrees. (AR 13.) The ALJ found that testimony Plaintiff argues that the ALJ erred in doing (Joint Stip. at 30-34, 37-38.) For the reasons explained below, 20 ALJs are tasked with judging the credibility of witnesses. Where 21 a claimant has produced objective medical evidence of an impairment 22 which could reasonably be expected to produce the symptoms alleged and 23 there is no evidence of malingering, an ALJ can only reject the 24 claimant s testimony for specific, clear, and convincing reasons. 25 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). In making a 26 27 28 1 It is not clear why Plaintiff amended the alleged onset date. It is possible that it was due to the fact that he had worked between 2001 and 2006, but the reason for the amendment was never explained. 2 1 credibility determination, the ALJ may take into account ordinary 2 credibility evaluation techniques. 3 Id. at 1284. The ALJ cited several reasons for questioning Plaintiff s 4 credibility. (AR 13.) He noted that the medical records from 5 November 30, 2006, to December 31, 2006 -the amended alleged onset 6 date to the date last insured--did not show any significant work- 7 related limitations [] or significant medical treatment. 8 Generally speaking, the fact that the medical records do not support a 9 claimant s testimony is a legitimate reason for discounting the (AR 13.) 10 testimony. 11 (9th Cir. 2008) ( Contradiction with the medical record is a 12 sufficient basis for rejecting the claimant's subjective testimony. ). 13 And, clearly, there are no medical records from December 2006, the 14 one-month period the ALJ focused on in rejecting Plaintiff s 15 testimony. 16 expanded his sights to the period before and after December 2006 to 17 determine if Plaintiff was telling the truth and whether he was, in 18 fact, impaired. 19 1996) (citing Smith v. Bowen, 849 F.2d 1222, 1224 (9th Cir. 1988)) 20 (holding medical evaluations made after the expiration of a claimant s 21 insured status are relevant to an evaluation of the pre-expiration 22 condition). 23 after December 2006 in evaluating whether Plaintiff s testimony is 24 truthful. 25 See Carmickle v. Comm r, Soc. Sec., 533 F.3d 1155, 1161 But the ALJ s approach was too myopic. He should have See Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. On remand, the ALJ should consider the records before and A second reason relied on by the ALJ for rejecting Plaintiff s 26 testimony was that Plaintiff was able to perform household chores, 27 like laundry and housework, which the ALJ found was inconsistent with 28 his testimony that he was, practically speaking, incapacitated. 3 (AR 1 13.) This is a legitimate reason for questioning a claimant s 2 testimony, Smolen, 80 F.3d at 1284, but it is not supported by 3 substantial evidence in the record and is not a convincing reason for 4 questioning Plaintiff s testimony in this case. 5 testify that on good days he could do a little housework, like pick 6 up items of clothing one at a time and carry them to the washing 7 machine, he explained that he only had a few good days a month. 8 28, 30-32.) 9 about two weeks a month--he was not even able to get out of bed in the Though Plaintiff did (AR He testified that on not-so-good days -which comprised 10 morning. 11 This was improper. 12 taking snippets out of context that support his view and ignoring 13 others that do not. 14 (9th Cir. 1999) (holding inaccurate characterization of the evidence 15 constitutes error); Gallant v. Heckler, 753 F.2d 1450, 1455-56 (9th 16 Cir. 1984). 17 testimony in determining whether he is credible. (AR 30-32.) The ALJ failed to consider this testimony. An ALJ cannot selectively parse the testimony, See Regennitter v. Comm'r, 166 F.3d 1294, 1297 On remand, the ALJ should consider all of Plaintiff s 18 The ALJ also relied on the fact that Plaintiff had failed to 19 follow his doctor s advice and obtain physical therapy to help relieve 20 his symptoms. 21 Plaintiff s sincerity, see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 22 1989) (holding unexplained failure to follow prescribed course of 23 treatment can undermine claimant s pain testimony), and is supported 24 by the record. 25 Plaintiff s alleged onset date, Plaintiff s treating doctor 26 recommended that he obtain physical therapy. 27 appears that Plaintiff failed to follow that advice for almost a year. 28 (AR 332-36.) (AR 13.) This is a valid reason for questioning In September 2006, two-and-a-half months before (AR 336.) But it Though Plaintiff argues that it is not clear from the 4 1 record when he actually started physical therapy (Joint Stip. at 33), 2 it was Plaintiff s job to make it clear. 3 controlling here. 4 His failure to do so is The Court has considered whether Plaintiff s failure to obtain 5 physical therapy, standing alone, is enough to support the ALJ s 6 credibility finding, see Carmickle, 533 F.3d at 1162-63 (explaining 7 ALJ s reliance on invalid reason to question claimant s testimony is 8 harmless error if other, valid reasons for questioning credibility 9 amount to substantial evidence), and concludes that it is not. It is 10 not clear to the Court that the ALJ would have discounted Plaintiff s 11 entire testimony for this reason alone. 12 argue that the record may not be complete and that physical therapy 13 records may exist to contradict the ALJ s finding in this regard. 14 these reasons, remand is required to allow Plaintiff to supplement the 15 record and to allow the ALJ to reconsider the credibility issue. 16 B. 17 For The Treating Doctor s Opinion The ALJ rejected treating doctor Brooks Michaels opinion that 18 Plaintiff was disabled. 19 so. 20 Further, Plaintiff seems to Plaintiff alleges that the ALJ erred in doing For the following reasons, the Court agrees, in part. By rule, the [Agency] favors the opinion of a treating physician 21 over non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th 22 Cir. 2007); see also Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 23 1999) (explaining that a treating physician s opinion is given 24 deference because he is employed to cure and has a greater 25 opportunity to know and observe the patient as an individual 26 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). 27 this reason, a treating doctor s opinion that is well-supported and 28 consistent with other substantial evidence in the record will be given 5 For 1 controlling weight. 2 418, 421 (9th Cir. 1988). 3 a treating doctor that is contradicted by another doctor s opinion for 4 specific and legitimate reasons supported by substantial evidence 5 in the record. 6 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 7 Orn, 495 F.3d at 631; Embrey v. Bowen, 849 F.2d An ALJ may, however, reject the opinion of Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) The ALJ found that Dr. Michaels opinion--which was dated January 8 21, 2010, and referenced Plaintiff s then-current condition--was not 9 relevant to the 31-day window from November 30, 2006 to December 31, 10 2006, in which Plaintiff claimed disability. 11 reason, he rejected the opinion. 12 Dr. Michaels focused mostly on Plaintiff s current condition in 13 January 2010, he also explained that Plaintiff was seriously injured 14 in 2001 and that since 2004 his condition had significantly worsened. 15 (AR 419.) 16 light on Plaintiff s condition in December 2006 and should not have 17 been rejected outright for that reason alone. 18 above, the ALJ should not have limited his analysis to the (non- 19 existent) records from the 31-day window at issue but should have 20 considered all of Dr. Michaels records as well as his overall opinion 21 in determining whether to accept it. 22 (AR 11-12.) For this The ALJ erred in doing so. Though Thus, Dr. Michaels opinion sheds some, albeit minimal, Further, as discussed See Sampson, 103 F.3d at 922. The ALJ also rejected Dr. Michaels opinion that Plaintiff was 23 disabled because he found that disability was a decision left to the 24 ALJ, not Dr. Michaels. 25 determinations are the exclusive province of ALJs. 26 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (noting 27 treating physician s opinion that claimant is disabled is not binding 28 on the ALJ); Social Security Ruling 96-5p (explaining doctors (AR 12.) The Court agrees. 6 Disability See, e.g., 1 opinions regarding ultimate issue of disability can never be entitled 2 to controlling weight or given special significance ). 3 ALJ was not required to accept Dr. Michaels opinion that Plaintiff 4 was disabled and did not err when he rejected that portion of the 5 opinion. 6 C. As such, the The Step-Two Finding The ALJ found that Plaintiff did not have a severe impairment at 7 8 step two. In light of the Court s rulings herein, on remand the ALJ 9 should reconsider this issue after addressing Plaintiff s credibility 10 and Dr. Michaels opinion and considering the other medical records 11 before and after December 2006. 12 D. The Scope of Remand 13 Plaintiff has requested that the Court credit Plaintiff s 14 testimony and Dr. Michaels opinion and remand the case for an award 15 of benefits. 16 authority to grant such relief, this case does not warrant it. 17 Despite the fact that the Court has focused its criticisms on the ALJ, 18 there is certainly enough blame to go around. 19 least to this Court, Plaintiff amended his application to provide for 20 a mere 31-day window to qualify for disability benefits, a period for 21 which there was not a single medical record in the file. 22 Plaintiff never testified to his condition during this period. 23 testimony focused mostly on how he felt in January 2010, when he 24 testified at the administrative hearing. 25 scant evidence in this record for anyone to determine what Plaintiff s 26 condition was in December 2006. 27 made-to-order disability opinion, rendered the day before the 28 administrative hearing, shed much light on the issue of Plaintiff s That request is denied. Though the Court has the Without explanation, at (AR 24-35.) Further, His Thus, there is Nor does Dr. Michaels seemingly 7 1 condition in December 2006. 2 errors here fall within the harmless error range because, arguably, 3 Plaintiff has failed to establish his disability. 4 Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (holding 5 error that does not affect ultimate disability determination is 6 harmless). 7 proceedings to allow the record to be developed consistent with this 8 opinion. 11 See Stout v. The Court will, however, remand the case for further 9 10 As a result, it is almost as if the ALJ s IV. CONCLUSION For the reasons set forth above, the Agency s decision is reversed and the case is remanded for further proceedings. 12 IT IS SO ORDERED. 13 DATED: December 23, 2011. 14 15 16 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\JOHNSON, S 7320\MEMORANDUM OPINION AND ORDER.WPD 8

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.