Joyce R. Moorer v. Michael J. Astrue, No. 2:2010cv09166 - Document 21 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOYCE R. MOORER, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-09166-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on November 30, 2010, seeking review of 19 the denial of plaintiff s application for a period of disability, 20 disability insurance benefits ( DIB ), and supplemental security income 21 ( SSI ). On December 28, 2010, the parties consented, pursuant to 28 22 U.S.C. 636(c), 23 Magistrate Judge. 24 2011, in which: 25 decision and awarding benefits or, alternatively, remanding for further 26 administrative proceedings; and the Commissioner requests that his 27 decision 28 administrative proceedings. § be to proceed before the undersigned United States The parties filed a Joint Stipulation on August 23, plaintiff seeks an order reversing the Commissioner s affirmed or, alternatively, remanded for further The Court has taken the parties Joint 1 Stipulation under submission without oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 On June 7, 2007, plaintiff filed an application for a period of 6 disability, DIB, and SSI. (Administrative Record ( A.R. ) 12.) 7 Plaintiff, who was born on March 19, 1951 (A.R. 17),1 claims to have been 8 disabled since March 15, 2007 (A.R. 12, 16), due to vision problems, 9 right thumb problem and high blood pressure (per testimony) (A.R. 14). 10 11 Plaintiff s claim was denied initially and upon reconsideration 12 (A.R. 53-57, 62-66); plaintiff then requested a hearing (A.R. 68). 13 July 28, 2009, plaintiff, who was represented by counsel, appeared and 14 testified at a hearing before Administrative Law Judge Edward C. Graham 15 (the ALJ ). 16 testified. 17 (A.R. 12-18), and the Appeals Council subsequently denied plaintiff s 18 request for review of the ALJ s decision (A.R. 1-4). 19 now at issue in this action. (A.R. 19-48.) On Vocational expert Randi Hetrick also On September 21, 2009, the ALJ denied plaintiff s claim That decision is 20 21 SUMMARY OF ADMINISTRATIVE DECISION 22 23 The ALJ found that plaintiff has not engaged in substantial gainful 24 activity since May 15, 2007, the alleged onset date. (A.R. 16.) The 25 ALJ determined that plaintiff has the following severe impairments: 26 27 28 1 On the date of the ALJ s decision, plaintiff was 58 years old, which is defined as a person of advanced age. (A.R. 17; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 hypertension, right thumb arthralgia and cataract, right eye. (Id.) 2 He also determined that plaintiff does not have an impairment or a 3 combination of impairments that meets or equals one of the listed 4 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 5 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (Id.) 6 7 After reviewing the record, the ALJ determined that plaintiff has 8 the residual functional capacity ( RFC ) to perform medium work, as 9 defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with no frequent 10 fine manipulation and with avoidance of working at unprotected heights 11 or around dangerous moving machinery. 12 that, with this RFC and limitations, plaintiff would be able to perform 13 her 14 Further, after considering plaintiff s age, education, work experience, 15 and RFC, as well as the testimony of the vocational expert, the ALJ 16 found 17 including laundry laborer, warehouse laborer, cleaner/housekeeper, sales 18 attendant, and outside deliverer. (Id.) Accordingly, the ALJ concluded 19 that plaintiff has not been disabled within the meaning of the Social 20 Security Act from May 15, 2007, the alleged onset date, through the date 21 of the ALJ s decision. (A.R. 17.) past relevant that work plaintiff as a could retail perform (A.R. 17.) sales jobs in The ALJ concluded representative. the national (Id.) economy, 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 26 decision to determine whether it is free from legal error and supported 27 by substantial evidence in the record as a whole. 28 F.3d 625, 630 (9th Cir. 2007). Orn v. Astrue, 495 Substantial evidence is such relevant 3 1 evidence as a reasonable mind might accept as adequate to support a 2 conclusion. 3 a mere scintilla but not necessarily a preponderance. 4 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 5 record can constitute substantial evidence, only those reasonably drawn 6 from the record will suffice. 7 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 8 9 Although this Court cannot substitute its discretion for that of 10 the Commissioner, the Court nonetheless must review the record as a 11 whole, weighing both the evidence that supports and the evidence that 12 detracts from the [Commissioner s] conclusion. 13 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 14 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 15 responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities. 17 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 18 19 The Court will uphold the Commissioner s decision when the evidence 20 is susceptible to more than one rational interpretation. 21 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 22 review only the reasons stated by the ALJ in his or her decision and 23 may not affirm the ALJ on a ground upon which he [or she] did not rely. 24 Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. 25 not reverse the Commissioner s decision if it is based on harmless 26 error, which exists only when it is clear from the record that an ALJ s 27 error 28 determination. was inconsequential to the Burch v. However, the Court may ultimate The Court will nondisability Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 4 1 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 2 2006)); see also Burch, 400 F.3d at 679. 3 DISCUSSION 4 5 6 Plaintiff claims that the ALJ did not consider her testimony 7 regarding the use of her right hand properly. 8 ( Joint Stip. ) at 4-8, 13-14.) Specifically, plaintiff claims that the 9 ALJ failed to give clear and convincing reasons for rejecting her 10 testimony that she is limited 11 manipulation with her right hand. to no more than (Joint Stipulation occasional gross (Id. at 7-8, 13-14.) 12 13 I. The ALJ Failed To Give Clear And Convincing Reasons For Rejecting 14 Plaintiff s Testimony Regarding Her Alleged Limitation To No More 15 Than Occasional Gross Manipulation With Her Right Hand. 16 17 Once a disability claimant produces objective medical evidence of 18 an underlying impairment that is reasonably likely to be the source of 19 claimant s subjective symptom(s), all subjective testimony as to the 20 severity of the symptoms must be considered. 21 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 22 (9th Cir. 1991)(en banc); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) 23 (explaining how pain and other symptoms are evaluated). 24 ALJ makes a finding of malingering based on affirmative evidence 25 thereof, he or she may only find an applicant not credible by making 26 specific findings as to credibility and stating clear and convincing 27 reasons for each. 28 considered in weighing a claimant s credibility include: Moisa v. Barnhart, 367 Robbins, 466 F.3d at 883. 5 [U]nless an The factors to be (1) the 1 claimant s reputation for truthfulness; (2) inconsistencies either in 2 the claimant s testimony or between the claimant s testimony and her 3 conduct; (3) the claimant s daily activities; (4) the claimant s work 4 record; and (5) testimony from physicians and third parties concerning 5 the nature, severity, and effect of the symptoms of which the claimant 6 complains. 7 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 8 9 An ALJ may not rely on a plaintiff s daily activities to support an 10 adverse credibility determination when those activities do not affect 11 the claimant s ability to perform appropriate work activities on an 12 ongoing and daily basis. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 13 Cir. 1990). 14 a sustained basis. 15 1995)(emphasis in original)(citing 20 C.F.R. § 404.1512(a)). A claimant 16 need not be utterly incapacitated to be eligible for benefits . . . and 17 many home activities are not easily transferable to what may be the more 18 grueling environment of the workplace, where it might be impossible to 19 periodically rest or take medication. Fair v. Bowen, 885 F.2d 597, 602 20 (9th Cir. 1989). The ALJ must evaluate the claimant s ability to work on Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 21 22 The ALJ made no specific finding as to whether plaintiff s right 23 thumb arthralgia could reasonably be expected to produce the symptoms of 24 which she complains - to wit, a limitation to not more than occasional 25 gross manipulation with her right hand. 26 finding that this impairment is severe (A.R. 16) and the medical record, 27 which includes, inter alia, findings of tenderness to deep palpation at 28 the base of the right thumb, mild Heberden s nodes in several of the 6 However, based on the ALJ s 1 distal interphalangeal joints, and basal arthralgia in the right thumb 2 (A.R. 15), it appears that plaintiff s impairment could reasonably be 3 expected to produce such symptoms. 4 of 5 rejecting plaintiff s testimony must be clear and convincing. malingering by plaintiff. Further, the ALJ cites no evidence Accordingly, the ALJ s reason for 6 7 In her Disability Reports, plaintiff stated that, with respect to 8 her right hand, she has severe stiffness and pain (A.R. 154), a loss 9 of mobility (id.), and sensitivity to anything [she] touch[es] (A.R. 10 164). As a result, she experiences difficulty getting dressed, combing 11 her hair, and shopping for the household. 12 Exertional Daily Activities Questionnaire, dated July 2, 2007, plaintiff 13 indicated that all her activities have slowed down as a result of her 14 allegedly disabling conditions. 15 noted that she cannot lift anything heavy, including heavy laundry 16 [and] groceries, and she cannot vacuum or mop. 17 further indicated that her daughter does the grocery shopping, and her 18 son s in-home service provider does the cleaning. (A.R. 132.) (A.R. 157.) In her Specifically, plaintiff (A.R. 132-33.) She (A.R. 133.) 19 20 At the administrative hearing, plaintiff testified that she is 21 right hand dominant, and that with respect to her right hand, she has 22 swelling in her thumb as well as sensitivity from her wrist to the top 23 of her thumb. 24 strength in her right hand and is unable to grasp, squeeze, or do 25 anything strenuous. 26 ability to pick up and carry objects is [n]ot good (A.R. 34), and she 27 is unable to lift more than ten pounds (A.R. 35). 28 daily activities, plaintiff testified that she cannot do much housework, (A.R. 31-32.) (A.R. 31.) She also testified that she has no Plaintiff further testified that her 7 With respect to her 1 and her daughter assists her. As for her hobbies and recreational 2 activities, plaintiff testified that, while her life has kind of slowed 3 down, she does like plants, music, and going to church. (A.R. 29.) 4 5 The ALJ found that plaintiff was not credible, because her pain 6 testimony was not consistent with the objective findings or the records 7 as a whole. 8 not credible, because: 9 right thumb pain] is an extreme impairment and it certainly does not 10 preclude occasional use ; (2) there is no documentation supporting 11 plaintiff s severe limitations; (3) [plaintiff] was treated for right 12 thumb pain ; (4) plaintiff showed no outward signs of any physical or 13 mental disability; and (5) plaintiff s daily activities are . . . 14 inconsistent with her allegations. (A.R. 15.) Specifically, the ALJ found plaintiff to be (1) [t]here is no indication that [plaintiff s (A.R. 15.) 15 16 The ALJ s first ground for finding plaintiff to be not credible - 17 to wit, that [t]here is no indication that [plaintiff s right thumb 18 pain] is an extreme impairment and it certainly does not preclude 19 occasional use -- is not clear and convincing. 20 ALJ found that plaintiff has the severe impairment of right thumb 21 arthralgia and, as a result, has the RFC to perform medium work with a 22 restriction to, inter alia, no frequent fine manipulation. (A.R. 17.) 23 While the ALJ included a restriction to no frequent fine manipulation, 24 plaintiff testified that her right hand pain resulted in difficulties 25 with gross handling as well - i.e., seizing, holding, grasping, and 26 other activities involving the use of her whole hand. 27 plaintiff alleges that her right thumb arthralgia and resulting pain 28 restrict her to occasional use of her right hand in both fine and gross 8 In his decision, the In other words, 1 manipulation(s). 2 testimony 3 manipulations with her right hand. 4 plaintiff s impairment does not preclude occasional use adds further 5 support to plaintiff s allegations. 6 does 7 plaintiff s testimony regarding her limitation to occasional gross 8 handling. not that The ALJ proffers no specific reason to reject her she constitute only a can only legally occasionally perform gross Indeed, the ALJ s statement that Accordingly, the ALJ s reasoning sufficient reason for rejecting 9 10 The ALJ s second reason for rejecting plaintiff s testimony - to 11 wit, that there is no documentation supporting plaintiff s severe 12 limitations -- is unpersuasive. It is well established that the failure 13 of the medical record to corroborate plaintiff s subjective symptom 14 testimony fully is not, by itself, a legally sufficient basis for 15 rejecting such testimony. 16 Cir. 2001); Bunnell, 947 F.2d at 347 (noting that [i]f an adjudicator 17 could reject a claim of disability simply because [plaintiff] fails to 18 produce evidence supporting the severity of the pain there would be no 19 reason for an adjudicator to consider anything other than medical 20 findings ). 21 documentation supporting such severe limitations cannot, by itself, 22 constitute a clear and convincing reason for rejecting plaintiff s 23 testimony. 24 Cotten v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch, 25 400 F.3d at 681. Rollins v. Massanari, 261 F.3d 853, 856 (9th Accordingly, the ALJ s finding that there is no See Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988); 26 27 28 The ALJ s third reason for finding plaintiff to be not credible is equally unpersuasive. The ALJ rejects plaintiff s testimony regarding 9 1 the limited use of her right hand, because plaintiff has been treated 2 for right thumb pain. (A.R. 15.) While impairments that are treatable 3 and/or 4 disabling, there is no evidence that plaintiff s thumb pain and 5 resulting limitations have been effectively treated and/or controlled. 6 Accordingly, 7 convincing reason for finding plaintiff to be not credible. controlled the effectively ALJ s with reasoning medication cannot are not constitute a considered clear and 8 9 The ALJ s fourth reason for finding plaintiff to be not credible - 10 to wit, that plaintiff showed no outward signs of any physical or mental 11 disability - is not clear and convincing. 12 not permissible for the ALJ to rely solely on the claimant s appearance 13 at the hearing (sometimes called sit and squirm jurisprudence). 14 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999); Perminter v. 15 Heckler, 16 administrative 17 swelling in her thumb area. 18 arthralgic - i.e., pertaining to the joints - it is unclear what other 19 outward signs, if any, would be present. 20 reasoning cannot constitute a clear and convincing reason for rejecting 21 plaintiff s testimony regarding her limitation to occasional gross 22 manipulation with her right hand. 15 F.3d 870, hearing, 872 (9th plaintiff Cir. As an initial matter, it is 1985). specifically (A.R. 31.) Moreover, showed the at the ALJ the As plaintiff s impairment is Accordingly, the ALJ s 23 24 The ALJ s last reason for finding plaintiff to be not credible - 25 to wit, that plaintiff s daily activities are inconsistent with her 26 allegations - is neither clear nor convincing. 27 not specify this, it appears that he finds plaintiff s testimony that 28 she has knee and right thumb pain and can only lift 10 pounds, walk for 10 Although the ALJ does 1 one block, and sit for one hour at a time to be inconsistent her 2 testimony that she does light housework, attends church services, and 3 enjoys listening to music and planting. 2 4 however, the ALJ fails to discuss the manner in which plaintiff performs 5 some of these activities. For example, plaintiff indicated, in both her 6 testimony and daily activities questionnaire, that she receives help 7 when performing activities such as cleaning and shopping. 8 also 9 limitations, indicated in she her questionnaire cannot vaccumm, 10 groceries. 11 (A.R. 15.) that, mop, or as lift a Critically, Plaintiff result heavy of her laundry and She also stated that her activities have slowed down as a result of her various limitations. 12 13 Accordingly, contrary to the ALJ s finding, plaintiff s daily 14 activities 15 Moreover, and significantly, the ALJ fails to explain how plaintiff s 16 minimal daily activities and household chores translate into the ability 17 to perform sustained work. 18 home activities are not easily transferable to what may be the more 19 grueling environment of the workplace ); see also Vertigan v. Halter, 20 260 F.3d 1044, 1050 (9th Cir. 2001)(noting that the mere fact that a 21 plaintiff has carried on certain daily activities, such as grocery 22 shopping, driving a car, or limited walking for exercises, does not in 23 any way detract from [plaintiff s] credibility as to her overall 24 disability ). 25 plaintiff s testimony regarding her limitations in her right hand is do not appear to contradict her asserted limitations. See Fair, 885 F.2d at 602 (noting that many Accordingly, the ALJ s last reason for rejecting 26 27 2 28 Although the ALJ states that plaintiff enjoys planting, plaintiff only testified that she like[s] plants. (A.R. 29.) 11 1 neither clear nor convincing.3 2 3 Accordingly, for the aforementioned reasons the ALJ failed to give 4 clear and convincing reasons, as required, for finding plaintiff to be 5 not credible. This constitutes error. 6 7 II. Remand Is Required. 8 9 The decision whether to remand for further proceedings or order an 10 immediate award of benefits is within the district court s discretion. 11 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 12 useful purpose would be served by further administrative proceedings, or 13 where the record has been fully developed, it is appropriate to exercise 14 this discretion to direct an immediate award of benefits. 15 ( [T]he decision of whether to remand for further proceedings turns upon 16 the likely utility of such proceedings. ). 17 outstanding issues that must be resolved before a determination of 18 disability can be made, and it is not clear from the record that the ALJ 19 would be required to find the claimant disabled if all the evidence were 20 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 21 22 Remand is the appropriate remedy to allow the ALJ the opportunity 23 to remedy the above-mentioned deficiencies and errors. See, e.g., 24 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 25 26 27 28 3 In discussing plaintiff s daily activities, the ALJ also notes that plaintiff does not appear to be too motivated to work. (A.R. 15.) While the ALJ s opinion regarding plaintiff s motivation to work is entitled to some deference, this reason alone is not sufficient to reject plaintiff s testimony. 12 1 further proceedings is appropriate if enhancement of the record would be 2 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 3 (remand appropriate to remedy defects in the record).4 4 ALJ must revisit plaintiff s testimony regarding her limitation to 5 occasional gross handling and must either credit plaintiff s testimony 6 or give clear and convincing reasons why plaintiff s testimony is not On remand, the 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Plaintiff has requested that this Court credit her testimony as true and remand for the payment of benefits and/or further administrative proceedings. In the Ninth Circuit, courts have the discretion to credit as true the testimony of claimants when the ALJ has failed to provide legally sufficient reasons for rejecting the same. See, e.g., Connett, 340 F.3d at 876 (holding that [i]nstead of being a mandatory rule, we have some flexibility in applying the credit as true theory ). In cases where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant s excess pain testimony were credited, applying the credit as true rule is appropriate. Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). Here, if plaintiff s testimony as to her limitation to occasional gross manipulation with her right hand were credited as true, it is unclear whether plaintiff would be considered disabled under the Social Security Act. At the hearing, plaintiff s counsel asked the vocational expert whether plaintiff could perform her past work if she were restricted to occasional gripping and grasping. (A.R. 45-46.) In response, the vocational expert opined that plaintiff could perform her past work as a child monitor, because the job only required occasional handling. (Id.) However, at the same hearing, the ALJ stated that plaintiff s prior job as a child monitor isn t SGA. (A.R. 47.) Because past relevant work must be substantial gainful activity - i.e., SGA - the vocational expert s testimony that plaintiff could perform her prior work, which is not past relevant work, does not appear to be relevant. 20 C.F.R. §§ 404.1560, 416.960 (noting that [p]ast relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it )(emphasis added). Further, the vocational expert gave no testimony regarding plaintiff ability to perform other work assuming, inter alia, a limitation to occasional gripping and grasping. As such, it is unclear what work, if any, plaintiff can perform assuming a limitation to no more than occasional gross handling. Accordingly, because it is unclear whether plaintiff s testimony, if credited as true, would require a finding of disability, the Court declines to credit her testimony as true. 13 1 credible. After so doing, the ALJ may need to reassess plaintiff s RFC, 2 in which case, testimony from a vocational expert likely will be needed 3 to determine what work, if any, plaintiff can perform. 4 5 CONCLUSION 6 7 Accordingly, for the reasons stated above, IT IS ORDERED that the 8 decision of the Commissioner is REVERSED, and this case is REMANDED for 9 further proceedings consistent with this Memorandum Opinion and Order. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 12 copies of this Memorandum Opinion and Order and the Judgment on counsel 13 for plaintiff and for defendant. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: December 20, 2011 18 19 20 21 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 14

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