Steven Sims v. Michael J Astrue, No. 2:2011cv05312 - Document 21 (C.D. Cal. 2012)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. Consistent with the foregoing, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See Order for further details) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEVEN SIMS, Plaintiff, 12 v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-5312 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Steven Sims ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying his application 24 for Disability Insurance Benefits ( DIB ). 25 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. 27 decision of the Agency is REVERSED and REMANDED for further proceedings. 28 // The parties consented, For the reasons stated below, the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for DIB on October 29, 2007. 5 (Administrative Record ( AR ) 91-93). 6 July 2, 2008. 7 administrative law judge ( ALJ ) on July 22, 2008. 8 held a hearing on February 23, 2010, (AR 24-48), and on May 7, 2010, he 9 issued an unfavorable decision. (AR 50-55). The Agency denied benefits on Plaintiff requested a hearing by an (AR 9-20). (AR 59). The ALJ Plaintiff sought review of 10 the ALJ s decision on July 12, 2010, (AR 7). The Appeals Counsel denied 11 further review on May 6, 2011. (AR 1). Plaintiff commenced the instant 12 action on June 24, 2011. 13 14 III. 15 FACTUAL BACKGROUND 16 17 A. Plaintiff s Medical History 18 19 Plaintiff has sought treatment for several medical problems, 20 including episodes of unconsciousness, (AR 226), dizziness, (AR 146, 21 181, 207, 209, 221, 226, 233, 345, 391), chest pains, (AR 145, 221), 22 left arm and neck pain, (AR 187, 193, 212, 216, 345), vomiting and 23 nausea, (AR 233, 268, 270, 391, 393, 407), abdominal pain and pancreas 24 problems, (AR 283, 378, 391-94, 394, 408, 410), weight loss (AR 269-70, 25 378) and anxiety. 26 Kaiser Permanente s Bellflower Medical Center and West L.A. Medical 27 Center, as well as St. Francis Medical Center and Cedars-Sinai Medical 28 Center. (AR 166, 185, 345). (AR 145, 187, 232, 377). 2 He has received treatment from 1 On August 18, 2006, Plaintiff visited Dr. Ontiveros at West L.A. 2 Medical Center for dizziness and stress following an episode that 3 morning where he passed out. 4 experienced a room-spinning sensation, fell to the ground, hit his back 5 and might have lost consciousness. 6 Plaintiff went to the emergency room at Kaiser Permanente s Bellflower 7 Medical Center following a dizzy and fainting episode. (AR 145-46, 148, 8 181-82).1 9 results were negative, indicating no abnormalities. (AR 226). He said he felt lightheaded, (Id.). On August 21, 2006, The hospital performed a CT scan of Plaintiff s head and the (AR 181). 10 On August 23, 2006, Plaintiff was admitted to the same hospital for 11 12 chest pains. (AR 145). 13 Plaintiff had frequent PVCs , and an echocardiogram and Holter monitor 14 were 15 Plaintiff also complained of vertigo spinning dizziness with movement 16 of his head. 17 with vertigo and discharged. recommended by Tests performed at the hospital showed the (AR 146). cardiology department. (AR 160, 183). On August 24, 2006, Plaintiff was diagnosed (AR 150). 18 19 On August 31, 2006, Plaintiff returned to Dr. Ontiveros at West 20 L.A. Medical Center for a follow-up appointment, during which he 21 complained of dizziness. 22 Dr. Saccone for vertigo dizziness, (AR 207, 209), and was diagnosed with 23 benign paroxysmal positional vertigo ( BPPV ). 24 16, 2006, Plaintiff saw Dr. Tafreshi for pain and tingling in his left 25 hand, wrist, and forearm. (AR 221). In September 2006, Plaintiff saw (AR 212). (AR 207). On October Plaintiff had a follow-up 26 27 28 1 The record fails to contain an emergency room ( ER ) report from Plaintiff s August 21, 2006 visit. Thus, the Court cites to Plaintiff s subsequent medical records that note the August 21, 2006 visit. 3 1 appointment with Dr. Saccone on November 2, 2006, during which he again 2 complained of left arm tingling. 3 Plaintiff returned to West L.A. Medical Center several times seeking 4 treatment for his left arm pain and tingling. 5 In January 2007, Plaintiff was prescribed Prednisone. (AR 216). After this appointment, (AR 187, 193, 199, 202). (AR 188, 196). 6 7 On October 4, 2007, Plaintiff was admitted to St. Francis Medical 8 Center for persistent bouts of vomiting, weight loss. 9 A CT scan of the abdomen and pelvis rendered a (AR 268, 270). small stone in 10 Plaintiff s gallbladder, a small irregular density in the right middle 11 lobe, and portions of the bowel showed diverticulosis of the colon. (AR 12 279-280). 13 internal hemmorhoid. (AR 282). Plaintiff was subsequently discharged. 14 (AR 274). A colonoscopy performed on October 8, 2007 revealed an 15 16 On October 16, 2007, Plaintiff returned to St. Francis Medical 17 Center for persistent and intractable vomiting. (AR 233). On October 18 17, 2007, the Department of Imaging Services performed an MRI on 19 Plaintiff s cervical spine. 20 herniation, osteoarthritis, and disc desiccation. 21 radiograph of Plaintiff s upper gastrointestinal tract and small bowel 22 series revealed a small hiatal hernia. (AR 258-60, 263-65). The MRI showed disc (AR 263-64). A (AR 259-60). 23 24 In a consultation report also completed on October 17, 2007, Dr. 25 Zevallos, the consulting physician, found mild lymphocytosis. (AR 247). 26 Dr. Zevallos described Plaintiff s symptoms as a complex clinical 27 picture and named a number of conditions that could cause Plaintiff s 28 symptoms, including gatroparesis, a tumor or lesion in the inner ear, 4 1 hyperthrydiosm, prolapse, of the mitral valve 2 disorder. 3 Ayoub, 4 audiologic testing. 5 (AR 250). (Id.). diagnosed or a psychosematic On October 18, 2007, the consulting physician, Dr. Plaintiff (AR 237). with labyrinthitis and sent him for Plaintiff was subsequently discharged. 6 7 On October 30, 2007, Plaintiff was admitted to Cedars-Sinai Medical 8 Center, where his operation report reflected his significant problems 9 with vertigo and probable mild diffuse chronic pancreatitis. 2 (AR 10 407-08). On November 20, 2007, Dr. Ulick diagnosed Plaintiff with 11 chronic pancreatitis, automimmune. (AR 392). Plaintiff had a CT scan 12 of his abdomen on February 15, 2008, and although radiology report 13 stated there was no abnormality of the pancreas identified, (AR 390), 14 a prescription form dated February 13, 2008 from St. Francis Medical 15 Center, the same medical center that treated Plaintiff in 2007, reads, 16 Pt is permanty [sic] disable [sic] due to autoimmune pancreati [sic]. 17 (AR 283). 18 ultrasound of Plaintiff s pancreas and biliary tracts. 19 found a persistent mild-to-moderate chronic pancreatitis change. 20 (Id.). On February 29, 2008, Dr. Lo performed an endoscopic (AR 378). He 21 22 On April 4, 2008, Plaintiff underwent a neurological evaluation to 23 elicit and analyze all clinically significant job or work related 24 injury induced neurological symptoms (primarily radicular neck and back 25 pain, shoulder pain, headaches, dizziness, etc.). (AR 350). The 26 27 28 2 According to the operation report, chronic pancreatitis could be the cause of Plaintiff s chronic nausea, vomiting, and weight loss. (AR 408). 5 1 report listed seven primary diagnoses for Plaintiff: (1) posttraumatic 2 cephalgia, 3 radiculopathy/radiculitis, (4) vertigo, (5) cervical headaches/posterior 4 headaches, (6) probable cervical discopathy and (7) cervical myofascial 5 syndrome. (Id.). The report also listed five additional diagnoses: (1) 6 left 7 syndrome, 8 radiculopathy/radiculitis and (5) lumbar discopathy. (2) shoulder (3) posttraumatic sprain/myofascial lumbo-sacral stress disorder, syndrome, myofascial (3) (2) thoracic syndrome, (4) cervical myofascial lumbo-sacral (AR 353). 9 10 Plaintiff had several progress appointments from April 10, 2008 to 11 February 12, 2009. 12 indicated that he continued to complain of headaches, neck pain, 13 dizziness, and pancreatic problems. (Id.). At his progress appointment 14 on May 8, 2008, Plaintiff still had nausea and vomiting. (AR 317-24). The reports from those appointments (AR 323). 15 16 B. Plaintiff s Application 17 18 Plaintiff received DIB payments since approximately August 23, 19 2006. (AR 94-99). On November 21, 2007, Plaintiff received a statement 20 notifying him that he had exhausted his DIB. 21 initial application for DIB to continue payments on October 29, 2007. 22 (AR 91-93). That same day the interviewer who completed the Disability 23 Report - Field Office 24 thin. (AR 95). He filed an - Form SSA - 3367 recorded, Clmt looked very (AR 103). 25 26 On November 7, 2007, Plaintiff completed the Disability Report - 27 Adult - Form SSA - 3368. 28 more than fifty pounds at his job, where he was required to lift (AR 105-115). 6 He wrote that he cannot lift 1 seventy-five pounds at times. (AR 106). He also cannot stand for more 2 than four hours and his job required eight hours of standing. 3 Plaintiff wrote that his vertigo has him dizzy all the time - there are 4 times [he] just faint[s]. 5 the highest grade of school he had completed. 6 indicated that [he] can not [sic] hold down food or liquids and [has] 7 lost weight. (Id.). Plaintiff listed twelfth grade as (Id.). (AR 112). Plaintiff (AR 113). 8 9 On November 19, 2007, Plaintiff completed the pain questionnaire, 10 (AR 116-18), on which he listed basketball, football, dancing, and sex 11 as activities he can no longer do because of his pain. 12 wrote that he is able to walk no to [sic] far from his home, to stand 13 for ten to fifteen minutes at a time, and to sit for thirty to forty- 14 five minutes at a time. (AR 118). Plaintiff finds himself constantly 15 having to stop engaging in activities due to pain. (AR 117). He (Id.). 16 17 On November 19, 2007, Plaintiff also completed his Function Report 18 - Adult, (AR 119-26), on which he wrote that he was no longer able to 19 work, [play] sports, run, lift heavy objects, hold [his] food down or 20 liquids because of his injuries. 21 because he cannot stand for long or bend over because those actions 22 cause dizziness. 23 playing sports with his children as his hobbies and interests. 24 123). 25 and interests, Plaintiff wrote not as often, and not as well. 26 Plaintiff s illness causes him to tire easily, in addition to causing 27 dizziness, vomiting, and nausea. 28 two to three times a week and visits his mother, who lives on the same (AR 122). (AR 120). He does not do yard work Plaintiff included watching television and (AR When answering how often and how well he performed these hobbies (Id.). 7 (Id.). He plays dominoes and cards 1 street, everyday. 2 were affected by the claimant s injury or condition, Plaintiff checked 3 the 4 understanding. boxes for (AR 119, 123). lifting, In the section asking what abilities bending, standing, kneeling, memory, and (AR 124). 5 6 C. Plaintiff s Testimony 7 8 After Plaintiff s initial application for DIB was denied, there was 9 a hearing on February 23, 2010 where a medical expert, vocational 10 expert, and Plaintiff testified. (AR 24). Plaintiff testified that he 11 completed school through the eleventh grade, in addition to some course 12 work at L.A. Trade Tech and Fremont Adult High School. 13 Plaintiff completed classes at both schools, but never finished a course 14 to receive a certificate. (AR 28-29). Prior to his alleged onset date, 15 Plaintiff worked for the United Parcel Service ( UPS ) for sixteen 16 years, primarily loading, unloading and sorting boxes. (AR 28). (AR 29). 17 18 Plaintiff testified that his disability onset date was August 15, 19 2006, after which he stopped working because [he] got home and [he] 20 woke up and passed out, hit [his] head, and hit a pinched . . . nerve 21 in [his] neck. 22 a pancreas problem now. 23 swollen and that he can t eat nothing, can t hardly stand, can t hardly 24 walk too long, because [he] [throws] up a lot and [he] [has] a lot of 25 diarrhea. 26 to his condition. (AR 31). He also needs to stop because he gets short 27 of breath and dizzy. 28 legs get tired, and he gets dizzy and weak. And [he] had a lot of bad headaches . . . And, [he] has (AR 30). (AR 29-30). He said that his pancreas is He is only able to walk a half block, if that, due (AR 31-32). He cannot stand for long because his 8 (AR 32). He throws up 1 everyday, with an average of at least three times a day, and has 2 diarrhea maybe one time a day. 3 he cannot sit for long, like, maybe five or ten minutes because his 4 lower back and a nerve in his neck cause him pain. 5 his injury he could lift things up to seventy-five pounds, but now he 6 can t lift no [sic] more than about twenty pounds. Not even twenty 7 pounds, maybe. (AR 31). Additionally, he said that (AR 33). Prior to (AR 34). 8 Plaintiff testified to being hospitalized at St. Francis for his 9 10 pancreas and stomach. (AR 38). St. Francis sent Plaintiff to Cedars- 11 Sinai Medical Center, where the doctor told him that he had swelling 12 of the pancreas and performed a biopsy, but never told him the results. 13 (AR 38-39). 14 nerve in [his] neck when [he] passed out. 15 problems with anxiety, which were mentioned during his hospitalizations 16 at St. Francis and Kaiser. He was also hospitalized at Kaiser after he had a pinched (AR 39). He also had (Id.). 17 18 D. Consultative Evaluations 19 20 Dr. N. Lin performed Plaintiff s internal medicine evaluation on 21 April 11, 2008. (AR 284-288). He found that Plaintiff is able to lift 22 or carry 50 pounds occasionally and 25 pounds frequently. 23 or walk up to 6 hours in an 8-hour workday and he can sit for 6 hours 24 in an 8-hour workday. 25 communicative limitations. He can stand There are no postural, manipulative, visual or (AR 288). 26 27 On May 17, 2008, Dr. Sohini P. Parikh performed a complete 28 psychiatric evaluation and found that Plaintiff did not have any 9 1 impairment in the ability to reason and make social, occupational, and 2 personal adjustments. 3 Plaintiff with mood disorder and anxiety disorder. (AR 295). However, Dr. Parikh diagnosed (AR 294-95). 4 5 E. Medical Expert s Testimony 6 7 At the February 23, 2010 hearing, the medical expert, Dr. Nafoosi,3 8 testified that the medical records supported findings that Plaintiff had 9 a cervical spine disorder, degenerative joint disease and a mood 10 disorder. (AR 41). 11 Plaintiff s pancreatitis and radiculopathy of the lower back were not 12 medically determinable. 13 Sinai records to arrive at his conclusions, because they were not in the 14 file he was provided with. (Id.). He also found Plaintiff s lower back 15 pain complaints were possible, even though the pain was not medically 16 determinable. 17 Plaintiff had a severe cervical spine condition. (AR However, he found that based on the record, (AR 43). 41). Dr. Nafoosi did not review the Cedar Ultimately, Dr. Nafoosi testified that (AR 41-42). 18 19 F. Vocational Expert s Testimony 20 21 At the February 23, 2010 hearing, the vocational expert ( VE ), 22 Kelly Huynh, testified that Plaintiff s past work was the medium, 23 unskilled work of a laborer. 24 could not perform his past work, but that he could perform other work, 25 such as a deliverer. (AR 47). The VE stated that for deliverers, which (AR 46). The VE testified that Plaintiff 26 27 28 3 The February 23, 2010 transcript refers to the medical expert as Dr. Stanley Nafuzi, but the court reporter notes this spelling is phonetic, (AR 24), so the Court defers to the spelling provided in the ALJ s opinion. (AR 14). 10 1 assume a medium, unskilled position, there are 2,700 positions available 2 locally and 310,000 nationally. 3 that Plaintiff could perform the work of a packager, an employment 4 option with 18,000 positions locally and 480,000 positions nationally. 5 (Id.). However, the VE also stated that if Plaintiff needed to take two 6 to three breaks in addition to his normal breaks to use the bathroom, 7 he could not do either job. (Id.). Additionally, the VE testified (AR 47-48). 8 9 IV. 10 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 11 12 To qualify for disability benefits, a claimant must demonstrate a 13 medically determinable physical or mental impairment that prevents her 14 from engaging in substantial gainful activity4 and that is expected to 15 result in death or to last for a continuous period of at least twelve 16 months. 17 42 U.S.C. § 423(d)(1)(A)). 18 incapable of performing the work she previously performed and incapable 19 of performing any other substantial gainful employment that exists in 20 the national economy. 21 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 22 To decide if a claimant is entitled to benefits, an ALJ conducts 23 24 a five-step inquiry. 20 C.F.R. § 404.1520(a). The steps are: 25 26 27 4 28 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 404.1510. 11 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? 3 If not, proceed to step two. 4 (2) Is the If so, the claimant is found not disabled. claimant s impairment 5 claimant is found not disabled. 6 severe? If not, the three. 7 (3) Does the claimant s If so, proceed to step impairment meet or equal the 8 requirements of any impairment listed at 20 C.F.R. Part 9 404, Subpart P, Appendix 1? found disabled. 10 11 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing her past work? 12 so, the claimant is found not disabled. 13 If to step five. 14 (5) If not, proceed Is the claimant able to do any other work? 15 claimant is found disabled. 16 If not, the If so, the claimant is found not disabled. 17 18 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 19 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 404.1520(a)(4). 20 21 The claimant has the burden of proof at steps one through four, and 22 the Commissioner has the burden of proof at step five. Bustamante, 262 23 F.3d at 953-54; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 24 2007). 25 an inability to perform the past work, the Commissioner must show that 26 the claimant can perform some other work that exists in significant 27 numbers in the national economy, taking into account the claimant s If, at step four, the claimant meets his burden of establishing 28 12 residual 2 experience. 3 Commissioner may do so by the testimony of a vocational expert or by 4 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 5 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 6 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 7 claimant 8 limitations, the Grids are inapplicable and the ALJ must take the 9 testimony of a vocational expert. 10 functional capacity ( RFC ),5 1 age, education and Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). has both exertional (strength-related) and work The When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 11 12 V. 13 THE ALJ S DECISION 14 15 The ALJ employed the five-step sequential evaluation process and 16 concluded that Plaintiff was not disabled within the meaning of the 17 Social Security Act. 18 evaluation, the ALJ found that Plaintiff had not engaged in substantial 19 gainful activity since the alleged onset date of August 15, 2006. 20 14). 21 impairment: disorder of the cervical spine. (Id.). At the third step, 22 he found that Plaintiff did not have an impairment or combination of 23 impairments that met or medically equaled a listed impairment. (AR 16). (AR 20). At the first step of the five-step (AR Next, at step two, he found that Plaintiff had a severe 24 25 26 27 28 5 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. § 416.945(a). 13 1 At step four, the ALJ found that Plaintiff has the RFC to perform 2 medium work as defined in 20 CFR 404.1567(c) except occasionally work 3 at 4 unprotected heights, around heavy machinery or open pool of water. (AR 5 16). 6 relevant work, (AR 18), but that transferability of job skills was not 7 an issue because Plaintiff s past relevant work was unskilled. (AR 19). 8 Plaintiff was defined as a younger individual because he was 41 years 9 old on the alleged disability onset date. shoulder level with both upper extremities; and no work at The ALJ thus found that Plaintiff was unable to perform his past (Id.). Plaintiff has at 10 least a high school education and is able to communicate in English. 11 (Id.). 12 13 At the fifth step, the ALJ could not use the grids because 14 Plaintiff was not able to perform substantially all of the requirements 15 of 16 Plaintiff s additional limitations impeded on his ability to perform 17 work, the ALJ consulted a vocational expert who testified that jobs 18 existed in the national economy for someone with Plaintiff s age, 19 education, work experience, and RFC. 20 vocational expert s testimony, the ALJ held that Plaintiff could perform 21 other work, such as a deliverer or hand packager. (Id.). Thus, the ALJ 22 found there were jobs in the economy that Plaintiff could perform and 23 Plaintiff was found not disabled. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ medium work. (AR 19). To determine (AR 19-20). (AR 20). 14 the extent to which Relying on the 1 VI. 2 STANDARD OF REVIEW 3 Under 4 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The court may set aside the 10 11 Substantial evidence means more than a mere scintilla, but less 12 than a preponderance. 13 mind might accept as adequate to support a conclusion. 14 Comm r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (quoting 15 Desrosiers v. Sec y of Health & Human Servs, 846 F.2d 573, 576 (9th Cir. 16 1988)); see also Reddick, 157 F.3d at 720. 17 substantial evidence supports a finding, the court must consider the 18 record as a whole, weighing both evidence that supports and evidence 19 that detracts from the [Commissioner s] conclusion. Aukland, 257 F.3d 20 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 21 If the evidence can reasonably support either affirming or reversing 22 that conclusion, the court may not substitute its judgment for that of 23 the Commissioner. 24 // 25 // 26 // 27 // 28 // It means such relevant evidence as a reasonable Reddick, 157 F.3d at 720-21. 15 Valentine v. To determine whether 1 VII. 2 DISCUSSION 3 4 The ALJ Failed To Provided Clear And Convincing Reasons For 5 Rejecting Plaintiff s Credibility 6 7 Plaintiff contends the ALJ erroneously rejected his testimony by 8 relying on immaterial inconsistencies. (Opening Brief in Support of 9 Plaintiff s Complaint ( Complaint Memo ) at 10). For the reasons stated 10 below, the Court finds the ALJ s decision should be reversed and this 11 action remanded for further proceedings. 12 13 The ALJ may reject a claimant s testimony if he or she makes an 14 explicit credibility finding that is supported by specific, cogent 15 reasons for the disbelief. 16 Cir. 1995) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 17 1990) (internal citations omitted)). When determining whether to reject 18 a claimant s subjective pain and symptom testimony, the ALJ applies a 19 two-step analysis. 20 2009). 21 medical evidence of an underlying impairment which could reasonably be 22 expected to produce the pain or other symptoms alleged. 23 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 24 if the ALJ finds evidence to support the alleged pain or other symptoms 25 and there is no evidence of malingering, then he or she must provide 26 specific, clear and convincing reasons for rejecting the claimant s 27 credibility. 28 ordinary Lester v. Chater, 81 F.3d 821, 834 (9th Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. First, the ALJ must determine whether there is objective Id.; see also Smolen, 80 F.3d at 1281. techniques of credibility 16 evaluation Id. (quoting Second, The ALJ may use to assess the 1 claimant s testimony, such as considering inconsistencies within the 2 claimant s testimony or between the testimony and claimant s conduct. 3 Turner v. Comm r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010). 4 The ALJ may also consider whether the claimant s daily activities are 5 inconsistent with his or her alleged symptoms. 6 at 1040. 7 pain and deny disability benefits solely because the degree of pain 8 alleged by the claimant is not supported by objective medical evidence. 9 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). Lingenfelter, 504 F.3d However, the ALJ may not discredit a claimant s testimony of 10 11 Here, the ALJ concluded that although Plaintiff s medically 12 determinable impairments could reasonably be expected to cause [his] 13 alleged symptoms, his statements concerning the intensity, persistence 14 and limiting effects of [the] symptoms [we]re not credible to the extent 15 they [we]re inconsistent with the . . . [RFC] assessment. 16 The ALJ rejected Plaintiff s testimony based on five areas where he was 17 inconsistent: (1) highest level of education obtained, (2) inability to 18 stand, (3) frequency of vomiting, (4) disability due to hypertension; 19 and (5) inability to function due to vertigo and dizziness. (AR 17). (AR 18). 20 21 First, the ALJ found that Plaintiff was inconsistent regarding the 22 level 23 Plaintiff s testimony was inconsistent because [Plaintiff] stated that 24 he completed 12th grade in his application. However, at the hearing the 25 [Plaintiff] testified he only completed 11th grade. 26 omitted). 27 the eleventh grade. 28 he never received his GED, [he] went to college and tr[ied] to get of education he obtained. (AR 18). The ALJ found that (Id.) (citations At the hearing, Plaintiff testified that he only completed (AR 28). However, he also testified that although 17 1 [his] grades from LA Trade Tech and [went] back to Freemont Adult High 2 School. 3 clarification of his previous report rather than a true inconsistency. 4 Regardless, this inconsistency, if valid at all, is minor in light of 5 all 6 testimony related to his medical condition. Thus, this reason provided 7 by to 8 credibility. of the (Id.). Consequently, Plaintiff s testimony appears to be a Plaintiff s ALJ is not testimony a and legitimate inconsequential reason to discredit Plaintiff s Plaintiff s 9 10 Second, the ALJ found that Plaintiff made inconsistent statements 11 about his ability to stand. (AR 18). The ALJ noted that Plaintiff 12 also stated he cannot stand for too long due to his dizziness. 13 yet, he visited his mother everyday by walking down the street and 14 played sports with his kids. (Id.) (citations omitted). Plaintiff did 15 list playing sports with his children as one of his hobbies and 16 interests in his function report. 17 wrote in his report that sports was something he was able to do before 18 his disability that he can no longer do. 19 questionnaire, Plaintiff also said he can no longer play basketball and 20 football due to pain from his injuries. 21 statements in his functional report and his pain questionnaire support 22 the conclusion that Plaintiff was formerly able to play sports with his 23 children, but no longer is, not the conclusion that Plaintiff continues 24 to play sports with his children. 25 Plaintiff can still play sports is not supported by the record and not 26 a sufficient reason to discredit Plaintiff s credibility. (AR 123). And However, Plaintiff also (AR 120). (AR 117). In his pain Plaintiff s Thus, the ALJ s determination that 27 28 18 1 The ALJ s determination that Plaintiff s alleged inability to stand 2 for long periods conflicts with his ability to walk to his mother s 3 house is also not supported by the record. 4 that he can only stand for ten to fifteen minutes, (AR 118), and walk 5 not too far from home, (id.), about half a block. 6 lives at 1150 E. 107th Street, Los Angeles, CA 90002, (AR 64), while his 7 mother lives only a few houses away at 1130 E. 107th Street, Los 8 Angeles, CA 90002. 9 stand and bend to do yard work because it causes dizziness, (AR 122), 10 does not conflict with his ability to walk to his mother s home a few 11 houses down the street. 12 legitimate reason to reject Plaintiff s credibility. (AR 118). (AR 18). Plaintiff stated (AR 31). Plaintiff His testimony about not being able to Thus, this reason cited by the ALJ is not a 13 14 Third, the ALJ noted that [a]t the hearing [Plaintiff] testified 15 he vomits everyday. 16 [Plaintiff] reported only vomiting once a week. 17 omitted). 18 statement to Dr. Lin (AR 284) and his statement at the hearing before 19 the ALJ in February 2010. 20 to how often he experienced vomiting symptoms were made at different 21 times during his illness, the ALJ wrongly held against Plaintiff this 22 inconsistency, if it is an inconsistency at all. However, to Dr. Lin, the consultative examiner, (AR 18) (citations Almost two years elapsed between Plaintiff s April 2008 (AR 31). Because Plaintiff s statements as 23 24 Moreover, the record confirms that Plaintiff suffered from episodic 25 vomiting on numerous occasions. 26 Plaintiff has also been diagnosed with chronic pancreatitis, which can 27 produce symptoms such as nausea and vomiting. 28 08). (AR 233, 247, 268-69, 271, 284). (AR 378, 392, 394, 407- As long as Plaintiff offers evidence of a medical impairment that 19 1 could be reasonably be expected to produce some degree of symptom, the 2 ALJ may not require the degree of symptom to be corroborated by 3 objective medical evidence. 4 1995). The record is replete with objective medical evidence to support 5 Plaintiff s diagnosis of chronic pancreatitis. 6 08). 7 to his vomiting complaints. Smolen v. Chater, 80 F.3d 1273 (9th Cir. (AR 378, 392, 394, 407- This evidence is sufficient to support Plaintiff s credibility as 8 9 Additionally, the ALJ found that [Plaintiff s] weight has been 10 essentially constant without any significant fluctuation as one might 11 expect 12 contradicts the ALJ s determination that Plaintiff s weight did not 13 fluctuate. For example, on October 4, 2007, Plaintiff weighed 211 lbs., 14 (AR 271), nine pounds less than his December 2006 weight of 220 lbs. 15 (AR 199). 16 October 4, 2007 and October 30, 2007, a short span of about three weeks. 17 (AR 410). By October 30, 2007, Plaintiff had lost a total of twenty two 18 pounds. 19 Center ordered a CT scan of Plaintiff s abdomen and a gastric emptying 20 study to determine the cause of Plaintiff s weight loss, which indicates 21 that Dr. Bhatt was concerned about Plaintiff s drop in weight. (AR 279, 22 281). 23 was noted Clmt looked very thin which further contradicts the ALJ s 24 assertion that plaintiff s weight did not fluctuate. 25 the ALJ s determination that Plaintiff s weight remained essentially 26 constant is incorrect in light of the evidence contained in the record, 27 and is not a legitimate reason to discredit Plaintiff s testimony. with frequent vomiting. (AR 18). However, the record In addition, Plaintiff lost another thirteen pounds between (AR 199, 410). Moreover, Dr. Bhatt at St. Francis Medical Additionally, in a disability report dated October 29, 2007, it 28 20 (AR 103). Thus, 1 Fourth, the ALJ found that [Plaintiff] also alleged disability due 2 to hypertension. However the treating notes indicated his blood 3 pressure was normal with 107/72 and 110/56 in September 2006. 4 (citations omitted). 5 two occasions in September 2006 when his blood pressure was normal, 6 (id.), while the record contains several treating notes that indicate 7 Plaintiff s blood pressure was elevated including: 135/88 on August 18, 8 2006 (AR 226), 121/82 on August 23, 2006, (AR 148), 130/90 on August 24, 9 2006, (AR 160), 135/50 on September 5, 2006, (AR 210), 126/74 on October 10 4, 2007, (AR 271), 130/80 on October 16, 2007, (AR 234), 125/88 on 11 October 18, 2007, (AR 244), 126/85 on October 30, 2007 (AR 410) and 12 121/81 on February 29, 2008. (AR 381). Thus, it is unclear, based upon 13 this record, whether or not Plaintiff suffered from hypertension and the 14 role hypertension may play in Plaintiff's symptoms. (AR 18) The ALJ only cited Plaintiff s blood pressure on 15 16 Fifth, the ALJ determined that [Plaintiff] alleges inability to 17 function due to vertigo and dizziness. 18 stated diagnosis was benign paroxsymal positional vertigo. 19 of the head showed no signs of intra-cranial masses. And the MRI of the 20 brain 21 omitted). 22 positional on September 21, 2006 after suffering from vertigo for 23 several weeks. 24 what benign paroxysmal positional vertigo is, the record does support 25 a general diagnosis of vertigo. 26 summary from the Bellflower Medical Center states [t]he patient also 27 had vertigo spinning dizziness with movement of his head. 28 Plaintiff was also diagnosed with posttraumatic vestibular disorder revealed no significant However the treating notes abnormalities. (AR 18) A CT scan (citations Plaintiff was diagnosed with vertigo, benign paroxysmal (AR 207, 209). Although the record does not explain For example, Plaintiff s discharge 21 (AR 146). 1 (Vertigo) by Dr. Onubah during his neurological evaluation on April 4, 2 2008. 3 noted that Plaintiff has had significant problems with vertigo in his 4 treatment notes on October 30, 2007. 5 complained 6 including visits in August 2006, (AR 146, 167, 221, 226), October 2007, 7 (AR 233, 237, 246), April 2008 (AR 353), and July 2008. 8 Thus, the basis for the ALJ s rejection of Plaintiff s claims about 9 vertigo and dizziness is undermined by the record. (AR 353). about Additionally, Dr. Lo at Cedar Sinai Medical Center dizziness during (AR 408). several of Finally, Plaintiff his medical visits, (AR 325). 10 11 In sum, the ALJ failed to provide specific clear and convincing 12 reasons for rejecting Plaintiff s credibility. Thus, the decision must 13 be 14 subjective pain testimony in light of the entire record and if his 15 testimony is rejected, he must provide clear and convincing reasons that 16 are consistent with the record. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ reversed.6 Upon remand, the ALJ must reconsider Plaintiff s 23 24 6 25 26 27 28 The ALJ ultimately found that [Plaintiff] ha[d] not been under a disability, as defined in the Social Security Act, from August 15, 2006, through the date of this decision [May 7, 2010]. (AR 20) (citation omitted). However, the Court notes that Plaintiff was receiving DIB for his condition until November 21, 2007, when his benefits were terminated for exhaustion of funds. (AR 94-99). Thus, the Agency apparently found Plaintiff s claims credible at least until November 21, 2007. (AR 95). 22 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING this 6 matter for further proceedings consistent with this decision. 7 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 8 and the Judgment on counsel for both parties. IT IS 9 10 DATED: May 23, 2012. 11 12 13 __________/S/_________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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