Shannon E Santana v. Michael J Astrue, No. 2:2011cv07340 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Marc L. Goldman. The case is remanded for further proceedings consistent with this opinion and order. (ts)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 SHANNON E. SANTANA, ) ) ) ) ) ) ) ) ) ) ) ) 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 Case No. CV 11-7340-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Shannon Santana seeks judicial review of the Social 18 Security Commissioner s denial of her application for disability 19 insurance benefits ( DIB ) and Social Security Disability Insurance 20 ( SSDI ) benefits. For the reasons set forth below, the decision of 21 the Social Security Commissioner is reversed, and the matter is 22 remanded for further proceedings consistent with this opinion. 23 24 I. Facts and Procedural Background 25 Plaintiff was born on October 16, 1969. (Administrative Record 26 ( AR ) at 108.) She completed high school and has work experience 27 as 28 telephone a customer service solicitor. representative, (AR at 25, 1 wardrobe 142.) assistant Plaintiff filed and her 1 applications for benefits on November 21, 2008, alleging disability 2 beginning May 4, 2004, due to multiple sclerosis and affective mood 3 disorders. (AR at 69, 108, 111.) Her application was denied 4 initially on April 8, 2009. (AR at 70-75.) An administrative 5 hearing was held on April 19, 2010, before Administrative Law Judge 6 ( ALJ ) Michael J. Kopicki. Plaintiff, represented by counsel, 7 testified as did a vocational expert ( VE ). (AR at 33-67.) ALJ 8 Kopicki issued an unfavorable decision on June 21, 2010. (AR 17- 9 27.) The ALJ found that Plaintiff suffered from the following 10 severe impairments: multiple sclerosis, by history; history of 11 right tibia and fibula fractures with residual osteoarthritis; and 12 a 13 impairments did not meet the requirements of a listed impairment 14 found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR at 20.) mood disorder. (AR at 19.) However, he found that these 15 The ALJ further found that Plaintiff retained the residual 16 functional capacity ( RFC ) to perform medium work as defined in 17 20 C.F.R. 404.1567(c) and 416.967(c) (lift and/or carry 50 pounds 18 occasionally, 25 pounds frequently, stand and/or walk about six 19 hours in an eight hour workday and sit about six hours in an eight 20 hour workday) except that she must avoid moderate exposure to 21 extreme temperatures and to hazards, such as moving machinery and 22 unprotected heights, and she is limited to simple, routine tasks. 23 (AR at 22.) The ALJ concluded that, although Plaintiff could not 24 perform any past relevant work, there were jobs in the national 25 economy which Plaintiff could perform, and therefore Plaintiff was 26 not disabled. (AR at 26.) 27 The Appeals Council denied review on July 7, 2011 (AR at 1-4), 28 and Plaintiff commenced this action for judicial review. On March 2 1 21, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) of 2 disputed facts and issues, including the following claims of error: 3 (1) the ALJ failed to properly consider the opinions of the 4 treating, examining and non-examining physicians; and (2) the ALJ 5 erred 6 testimony. (Joint Stip. at 3.) Plaintiff asks the Court to reverse 7 and order an award of benefits, or in the alternative, remand for 8 further administrative proceedings. (Joint Stip. at 14-15.) The 9 Commissioner requests that the ALJ s decision be affirmed. (Joint 10 in evaluating Plaintiff s credibility and subjective Stip. at 15.) 11 After reviewing the parties respective contentions and the 12 record as a whole, the Court finds Plaintiff s contention regarding 13 the ALJ s failure to make a proper credibility determination to be 14 meritorious 15 consistent with this opinion. and remands this matter for further proceedings 16 17 II. 18 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner s 20 decision must be upheld unless the ALJ s findings are based on 21 legal error or are not supported by substantial evidence in the 22 record as a whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 23 1999); 24 Substantial evidence means more than a scintilla, but less than a 25 preponderance; it is evidence that a reasonable person might accept 26 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 27 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 28 466 Parra F.3d decision v. 880, to Astrue, 882 (9th deny 481 benefits. F.3d Cir. 742, 2006)). 3 746 To The Commissioner s (9th Cir. determine 2007). whether 1 substantial evidence supports a finding, the reviewing court must 2 review the administrative record as a whole, weighing both the 3 evidence that supports and the evidence that detracts from the 4 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 5 (9th Cir. 1996). If the 6 or reversing the ALJ s conclusion, the reviewing court may not 7 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 8 882. Finally, the Court may not reverse an ALJ s decision based on 9 an error that is harmless. Molina v. Astrue, --- F.3d ----, 2012 WL 10 1071637 at *4 (9th Cir., Apr. 2, 2012) (citing Stout v. Comm r, 11 Soc. Sec. Admin, 454 F.3d 1050, 1055-56 (9th Cir. 2006)). evidence can support either affirming 12 13 14 15 III. Discussion A. Symptom Testimony1 16 17 The ALJ Improperly Discredited Plaintiff s Subjective Plaintiff contends that the ALJ failed to provide clear and 18 convincing reasons 19 testimony. (Joint 20 administrative hearing to the following symptoms and functional 21 limitations: she has difficulty organizing and making decisions; 22 she suffers from anxiety; she has body weakness and cannot stand 23 for more than 45 minutes; she has hand cramping, double vision and 24 dizziness; her left hand frequently becomes numb; and she has left 25 foot drop that causes her to frequently stumble and fall. (AR at for Stip. discrediting at 9.) her Plaintiff subjective testified symptom at the 26 27 28 1 Because the Court finds that the credibility determination was erroneously made, the claim regarding the alleged misevaluation of the medical evidence will not be addressed. 4 1 38-47.) 2 To determine whether a claimant s testimony about subjective 3 pain or symptoms is credible, an ALJ must engage in a two-step 4 analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 5 (citing Lingenfelter 504 F.3d at 1035-36). First, the ALJ must 6 determine whether the claimant has presented objective medical 7 evidence of an underlying impairment which could reasonably be 8 expected 9 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces to produce the alleged pain or other symptoms. 10 objective 11 adjudicator may not reject a claimant s subjective complaints based 12 solely on a lack of objective medical evidence to fully corroborate 13 the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 14 345 (9th Cir. 1991) (en banc). To the extent that an individual s 15 claims of functional limitations and restrictions due to alleged 16 pain is reasonably consistent with the objective medical evidence 17 and other evidence in the case, the claimant s allegations will be 18 credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 19 404.1529(c)(4), 416.929(c)(4)).2 medical evidence of an underlying impairment, an 20 Unless there is affirmative evidence showing that the claimant 21 is malingering, the ALJ must provide specific, clear and convincing 22 reasons for discrediting a claimant s complaints. Robbins, 466 F.3d 23 at 883. General findings are insufficient; rather, the ALJ must 24 25 26 27 28 2 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 5 1 identify 2 undermines the claimant s complaints. Reddick, 157 F.3d at 722 3 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The 4 ALJ must consider a claimant s work record, observations of medical 5 providers and third parties with knowledge of the claimant s 6 limitations, aggravating factors, 7 by symptoms, effects of medication, and the claimant s daily 8 activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 9 1996). The ALJ may also consider an unexplained failure to seek 10 treatment or follow a prescribed course of treatment and employ 11 other ordinary techniques of credibility evaluation. Id. (citations 12 omitted). 13 what Here, the testimony ALJ is not concluded credible and what evidence functional restrictions caused that Plaintiff s medically 14 determinable impairments could reasonably be expected to cause 15 some of the alleged symptoms. (AR at 23.) However, the ALJ 16 rejected Plaintiff s description of her symptoms to the extent 17 they [were] inconsistent with the ALJ s assessment that Plaintiff 18 retained the RFC to perform medium work with certain limitations. 19 (Id.) Because there was no evidence of malingering, the ALJ was 20 therefore 21 reasons for rejecting Plaintiff s subjective allegations of pain 22 and functional limitations. required to provide specific, clear and convincing 23 The ALJ gave two reasons for rejecting Plaintiff s testimony, 24 neither of which are specific, clear and convincing. First, the ALJ 25 found that Plaintiff was not fully credible because she performed 26 some work-related activity in 2008, after the alleged onset date of 27 May 4, 2004. (AR at 23.) The ALJ noted that Plaintiff had reported 28 losing a job in January 2008 and also reported that she felt her 6 1 multiple sclerosis was stable and was looking for employment in 2 March 2008. (Id.) 3 In the context of determining eligibility for benefits, the 4 Commissioner is required to assess whether a claimant has the 5 ability to work on a sustained basis. 20 C.F.R. § 404.1512(a); 6 Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998). Here, the ALJ 7 determined that, although Plaintiff had earnings since her alleged 8 onset 9 considered to be substantial gainful activity. (AR at 19.) date, the amounts earned were well below the amount 10 Plaintiff testified that she worked for short periods of time 11 at various jobs during the relevant disability period but that she 12 generally either quit or was fired because she was unable to 13 perform the employment requirements due to her impairment. (AR at 14 37-38.) As the Ninth Circuit has noted, [O]ccasional symptom-free 15 periods 16 inconsistent with disability. Lester v. Chater, 81 F.3d 821, 833 17 (9th Cir. 1995). In the same vein, an unsuccessful attempt to work 18 during a remission in symptoms is not an adequate basis for 19 discrediting a claimant s testimony, particularly when the records 20 show the existence of a medically determinable impairment that 21 could cause the disabling symptoms. Therefore, the ALJ s reliance 22 on Plaintiff s unsuccessful work attempt was not a clear and 23 convincing reason for discounting Plaintiff s credibility. 24 The - and other even the reason sporadic offered by ability the to ALJ work for - are not discrediting 25 Plaintiff s testimony is equally insufficient. The ALJ stated, At 26 one point she attempted to receive special authorization from her 27 doctor stating she was unable to take the regular bus but rather 28 needed to get picked up by sedan. Her treating physician did not 7 1 see a clear reason why such an accommodation was required. (AR at 2 23, citing AR at 261.) It is entirely unclear how her request to 3 ride in a sedan, rather than a bus, has any bearing on Plaintiff s 4 credibility 5 Plaintiff s physician did not reject Plaintiff s request for the 6 accommodation, but merely requested that Plaintiff provide more 7 information as to why it was necessary. (AR at 261.) regarding her subjective symptoms. Moreover, 8 In support of the argument that the ALJ properly addressed 9 Plaintiff s subjective complaints, the Commissioner contends that 10 Plaintiff s activities of daily living were not consistent with her 11 subjective pain complaints. (Joint Stip. at 12.) Although the ALJ 12 did note that Plaintiff is able to perform certain activities, such 13 as knitting, light housecleaning, and some grocery shopping, the 14 ALJ did not specifically cite Plaintiff s activities of daily 15 living as a reason for rejecting Plaintiff s subjective complaints. 16 (AR at 23.) Nor did he cite the medical record as a basis for the 17 credibility determination. Even if these were valid reasons for 18 discounting Plaintiff s credibility, it would be error for this 19 Court to affirm the ALJ s decision based upon reasons that the ALJ 20 did not provide. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 21 2003). 22 In sum, the reasons given by the ALJ for rejecting Plaintiff s 23 testimony were not supported by substantial evidence in the record 24 and were therefore insufficient to reject her testimony regarding 25 her symptoms and related limitations. 26 // 27 // 28 // 8 1 IV. Conclusion 2 The decision whether to remand for further proceedings is 3 within this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 4 1175-78 (9th Cir. 2000). Where no useful purpose would be served by 5 further administrative proceedings, or where the record has been 6 fully developed, it is appropriate to exercise this discretion to 7 direct an immediate award of benefits. Id. at 1179 ( [T]he decision 8 of whether to remand for further proceedings turns upon the likely 9 utility of such proceedings. ); Benecke v. Barnhart, 379 F.3d 587, 10 593 (9th Cir. 2004). However, where there are outstanding issues 11 that must be resolved before a determination of disability can be 12 made, and it is not clear from the record that the ALJ would be 13 required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. Bunnell v. Barnhart, 336 15 F.3d 1112, 1115-16 (9th Cir. 2003); see also Connett, 340 F.3d at 16 876 17 determination). (remanding case for reconsideration of credibility 18 Here, the ALJ s credibility determination was not legally 19 sufficient nor supported by substantial evidence. Accordingly, the 20 case is remanded for further proceedings consistent with this 21 opinion and order. 22 Dated: April 4, 2012 23 24 ______________________________ Marc L. Goldman United States Magistrate Judge 25 26 27 28 9
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