Sheila Marie Chesnes v. Michael J. Astrue, No. 2:2010cv07535 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this order. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SHEILA MARIE CHESNES, 11 12 13 Plaintiff, v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-7535 PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals the decision of Defendant Social Security 19 Administration ( the Agency ), denying her applications for 20 Disability Insurance benefits ( DIB ) and Supplemental Security 21 Income ( SSI ). 22 erred in finding that she was not credible. 23 For the reasons explained below, the Agency s decision is reversed 24 and the case is remanded for further proceedings. 25 She claims that the Administrative Law Judge ( ALJ ) II. (Joint Stip. at 3-12.) SUMMARY OF PROCEEDINGS 26 Plaintiff applied for DIB and SSI on November 8, 2007, alleging 27 that she had been unable to work since December 30, 2006, because of 28 fibromyalgia, migraines, severe tendon problems, and vision problems. 1 (Administrative Record ( AR ) 102-07, 111, 115.) 2 her application initially and on reconsideration. 3 She then requested and was granted a hearing before an ALJ. 4 (AR 89-91.) 5 hearing on July 1, 2009. 6 decision denying benefits. 7 Appeals Council, which denied review. 8 the instant action. (AR 68-77, 83-87.) Plaintiff appeared with counsel and testified at the (AR 41-67.) The ALJ subsequently issued a (AR 11-24.) III. 9 10 The Agency denied Plaintiff appealed to the (AR 1-7.) She then commenced ANALYSIS The ALJ found that Plaintiff s testimony that she was severely 11 impaired was not credible. 12 for this finding were not clear and convincing and were not supported 13 by substantial evidence in the record. 14 the following reasons, the Court agrees. 15 Plaintiff contends that the ALJ s reasons (Joint Stip. at 4-12.) For ALJs are tasked with judging the credibility of the witnesses. 16 In making credibility determinations, they employ ordinary 17 credibility evaluation techniques. 18 1284 (9th Cir. 1996). 19 medical evidence of an impairment which could reasonably be expected 20 to produce the alleged symptoms and there is no evidence of 21 malingering, the ALJ can only reject the claimant s testimony for 22 specific, clear, and convincing reasons, id. at 1283-84, that are 23 supported by substantial evidence in the record. 24 278 F.3d 947, 959 (9th Cir. 2002). 25 Smolen v. Chater, 80 F.3d 1273, Where a claimant has produced objective Thomas v. Barnhart, The ALJ found that Plaintiff s obesity, fibromyalgia, migraines, 26 and tendonitis were severe impairments. 27 these impairments could reasonably be expected to produce Plaintiff s 28 alleged symptoms and did not find that Plaintiff was malingering, but 2 (AR 17.) She concluded that 1 determined that her statements concerning her symptoms were not 2 entirely credible. 3 questioning Plaintiff s credibility: (1) Plaintiff exaggerated her 4 claims of depression; (2) she regularly engaged in physical 5 activities that were inconsistent with her claimed limitations; (3) 6 the intensity of her alleged physical pain was inconsistent with the 7 objective medical evidence; and (4) her headache claims were 8 exaggerated. (AR 20.) (AR 20-21.) The ALJ cited four reasons for The Court addresses each one in turn. The ALJ rejected Plaintiff s testimony because she had not 9 10 undergone any treatment to address her alleged depression and the 11 consulting psychiatrist found that she was not limited as a result of 12 her depression. 13 reason to question her testimony because she never claimed that she 14 was impaired due to depression. 15 Court agrees. (AR 20.) Plaintiff argues that this was not a valid For the reasons explained below, the Plaintiff never claimed that she was unable to work because she 16 17 was depressed. (AR 50, 128, 138.) She complained mostly about 18 physical ailments that caused severe pain and prevented her from 19 working, though she noted that, beginning in 2006, she began 20 experiencing panic attacks, which made it hard for her to cope. 21 (AR 47-48, 128.) 22 that she cried a lot, she never claimed that that was the reason she 23 could not work. 24 psychological examination, she told Dr. Stephan Simonian that she was 25 depressed, and he agreed, diagnosing her with depression. 26 201.) 27 impairments. Though she testified at the administrative hearing (AR 49.) When she went to the consultative (AR 198, But Plaintiff never added depression to her list of claimed 28 3 1 Thus, the Court is at a loss to understand why Plaintiff s 2 failure to seek treatment for depression establishes that she was 3 lying when she claimed that her physical ailments prevented her from 4 working. 5 she was suffering from depression until she was in the midst of the 6 application process. 7 seek treatment is not a convincing reason for doubting her testimony. 8 It appears that Plaintiff may not have even recognized that As such, the Court finds that her failure to The second reason the ALJ relied on for discounting Plaintiff s 9 testimony was that her daily activities--including taking walks, 10 preparing meals, and doing housework--were inconsistent with her 11 claimed level of impairment. 12 support this finding. 13 (AR 21.) The record does not fully A claimant s ability to perform daily activities may be grounds 14 for an adverse credibility finding where the ability to perform these 15 activities is inconsistent with the claimant s testimony or where the 16 claimant is able to spend a substantial part of [her] day engaged in 17 pursuits involving the performance of physical functions that are 18 transferable to a work setting. 19 (9th Cir. 2007) (quotation omitted). 20 perform a limited range of chores, however, does not mean that she 21 can work or that she is lying when she claims that she cannot. 22 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (holding a 23 claimant need not be utterly incapacitated in order to be found 24 disabled). 25 Orn v. Astrue, 495 F.3d 625, 639 The fact that a claimant can See Plaintiff testified that she did light work and little 26 things around the house, including wash[ing] a sink or . . . a 27 couple dishes just to keep moving. 28 she did not cook like she used to do and instead, was confined to 4 (AR 51-53.) She explained that 1 merely microwaving her meals. (AR 53.) This testimony is consistent 2 with Plaintiff s April 1, 2008 disability report, in which she 3 explained, [g]rocery shopping and housework are difficult due to 4 chronic pain, and with her August 26, 2008 disability report, in 5 which she stated, it is very hard for me to clean the house. 6 131, 141.) 7 Plaintiff s account, testifying that Plaintiff did minimal stuff 8 around the house, including put[ting] the dishes in the dishwasher. 9 (AR 58.) (AR Plaintiff s roommate, Ron Parsons, corroborated Thus, the record establishes that Plaintiff s daily activities 10 11 were limited in scope, did not consume a substantial part of her day, 12 and were not necessarily transferable to the work setting. 13 they do not support the ALJ s finding that Plaintiff s ability to 14 perform them establishes that she was exaggerating her claims of 15 pain. 16 (9th Cir. 1989) 17 As such, See Orn, 495 F.3d at 639; Fair v. Bowen, 885 F.2d 597, 603 The ALJ s third reason for rejecting Plaintiff s testimony was 18 that the objective medical evidence was inconsistent with Plaintiff s 19 subjective claims of back and joint pain. 20 following reasons, the Court finds that the ALJ erred in making this 21 determination. 22 (AR 21.) For the Generally speaking, where a claimant s alleged pain is 23 inconsistent with the objective medical evidence, the ALJ may 24 consider that fact in questioning a claimant s testimony. 25 v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (upholding ALJ s adverse 26 credibility finding where claimant s complaints of knee pain were 27 contradicted by tests showing knee function within normal limits); 28 Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001) (upholding 5 See Parra 1 ALJ s credibility finding in part because evaluations revealed little 2 evidence of disabling abnormality of the claimant s spine). 3 Fibromyalgia, however, is a unique affliction. 4 it is diagnosed entirely on the basis of a patient s reported pain 5 and other symptoms; and there are no laboratory tests to confirm the 6 diagnosis. 7 As such, it is generally not appropriate to rely on the absence of 8 objective medical evidence alone to discredit a claimant s claims of 9 pain stemming from fibromyalgia. Its cause is unknown; Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). See, e.g., id. at 594 (noting ALJ 10 errs when he requires claimant to produce objective medical evidence 11 for a disease without objective measurement); Preston v. Sec y, 12 Health & Human Servs., 854 F.2d 815, 817-18 (6th Cir. 1988) ( In 13 stark contrast to the unremitting pain of which fibrositis patients 14 complain, physical examinations will usually yield normal results--a 15 full range of motion, no joint swelling, as well as normal muscle 16 strength and neurological reactions. ). 17 Here, the ALJ relied almost entirely on such evidence to find 18 that Plaintiff s back and joint pain claims were not credible. 19 (AR 21-22.) 20 subjective complaints or symptoms, it was only to note that they were 21 consistent from year-to-year and appointment-to-appointment. 22 example, the ALJ pointed out that treating notes indicated that 23 Plaintiff s check list of self[-]reported symptoms did not vary from 24 visit to visit and that [c]hronic pain and fibromyalgia were 25 repeatedly mentioned with few comments regarding changes in 26 symptoms. 27 more, not less, credible. 28 F.3d 99, 108 (2d Cir. 2003) (claimant s complaints of pain in her To the extent that the ALJ mentioned Plaintiff s (AR 22.) For But, this seems to suggest that her claims were See, e.g., Green-Younger v. Barnhart, 335 6 1 back, legs, and upper body, fatigue, and disturbed sleep were 2 credible, in part, because they were internally consistent and 3 consistent with common symptoms of fibromyalgia ). 4 observed that the treatment notes reveal that most [of Plaintiff s 5 doctor] visits were for refills of pain medication, (AR 21, 22), 6 another assertion that makes Plaintiff s pain complaints more, not 7 less, credible because, presumably, Plaintiff had been taking her 8 pain medications because she needed them and had returned to obtain 9 more. 10 11 The ALJ also As such, the Court does not find this a convincing reason for discounting Plaintiff s testimony. Finally, the ALJ determined that Plaintiff s claims of severe 12 migraine headaches were not credible because the headaches could be 13 controlled with medication and were unaccompanied by visual symptoms 14 like photophobia. 15 substantial evidence in the record to support the first finding, but 16 not the second. 17 (AR 21.) The Court concludes that there is In determining whether a claimant s testimony is credible, an 18 ALJ may consider an unexplained or inadequately explained failure to 19 seek treatment or to follow a prescribed course of treatment for 20 allegedly disabling pain. 21 F.2d at 603). 22 Orn, 495 F.3d at 638 (citing Fair, 885 In a February 2008 headache questionnaire, Plaintiff explained 23 that Imitrex usually takes [her migraines] away and is the only 24 thing that works to stop her headaches. 25 discontinued using Imitrex in 2007, however, and was not taking it 26 when she appeared at the administrative hearing in July 2009. 27 123, 145.) 28 stopped taking Imitrex. (AR 123.) Plaintiff (AR There is nothing in the record to explain why Plaintiff The Court notes, too, that Plaintiff was not 7 1 taking pain medication, other than Excedrin, at the time of the 2 administrative hearing. 3 I don t want to take [pain medication] because right now I m not 4 working, and I would rather just deal with the pain on my own and try 5 to do things like relax, lay down. 6 she also claimed that the doctors had prescribed too much medication 7 and that it caused her to be loopy and that she was scared to take 8 them all. (AR 50.) When asked why, she told the ALJ, (AR 50.) Though, to be fair, (AR 51.) 9 In the Joint Stipulation, Plaintiff s lawyer argues that 10 Plaintiff stopped taking Imitrex because she lost her medical 11 insurance, (Joint Stip. at 10-11), citing a headache questionnaire 12 she submitted in 2008. 13 not state that she stopped taking Imitrex because she lost her 14 insurance. 15 explanation since it is clear in the record that she continued to 16 receive prescription medication after she lost her insurance. 17 276-77.) (AR 122-23.) This document, however, does Even if it did, it would still be a questionable (AR Because it was reasonable for the ALJ to assume that, if 18 19 Plaintiff s migraines were as debilitating as she claimed, she would 20 have used Imitrex -the only thing that work[ed] to control her 21 headaches--the ALJ s finding that her headache complaints were not 22 credible due to the fact that she was not taking that medication is 23 valid and convincing. 24 603). 25 Orn, 495 F.3d at 638 (citing Fair, 885 F.2d at The record, however, does not support the ALJ s determination 26 that there were no reports of visual problems such as photophobia 27 associated with Plaintiff s headaches. 28 contains references to photophobia, (AR 122, 276), and the ALJ 8 (AR 21.) In fact, the record 1 herself recognized in her decision that Plaintiff had complained to 2 her physicians about photophobia. 3 (AR 17.) In the end, of the four reasons cited by the ALJ for rejecting 4 Plaintiff s testimony, the Court finds that only one -Plaintiff s 5 failure to take medication that controlled her migraines--was a valid 6 reason that was supported by substantial evidence. 7 remains is whether this reason alone is enough to uphold the ALJ s 8 credibility finding. 9 relevant inquiry . . . is whether the ALJ s decision remains legally The issue that See Carmickle, 533 F.3d at 1162 (stating 10 valid despite errors in the credibility analysis). 11 concludes that it is not. 12 convinced that the ALJ would have rejected Plaintiff s credibility 13 for this reason alone and, therefore, remand is required to allow her 14 to reconsider the credibility finding in light of the Court s 15 ruling. 16 The Court Further, and importantly, the Court is not Plaintiff asks the Court to remand the case for an award of 17 benefits. The Court recognizes it has the authority to do so, see 18 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989), but 19 concludes that that relief is not warranted here. 20 the Court from the record before it that Plaintiff is, in fact, 21 credible or that she is disabled. 22 to flesh this out. 23 Cir. 2000) (holding remand for further proceedings was appropriate 24 where the record contained additional unanswered questions regarding 25 the applicant s eligibility for benefits). It is not clear to Further proceedings are necessary See Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th 26 27 28 9 1 2 3 IV. CONCLUSION For these reasons, the Agency s decision is reversed and the case is remanded for further proceedings consistent with this order. 4 IT IS SO ORDERED. 5 DATED: September 24, 2011. 6 7 8 PATRICK J. WALSH United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S:\PJW\Cases-Soc Sec\CHESNES, S 7535\memorandum.wpd 28 10

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