Carlos A Flores v. Michael J Astrue, No. 2:2012cv01424 - Document 22 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Carlos A Flores v. Michael J Astrue Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CARLOS A. FLORES, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. CV 12-01424-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on February 23, 2012, seeking review of 19 the denial of plaintiff s application for a period of disability and 20 disability insurance benefits ( DIB ). On March 13, 2012, the parties 21 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 22 undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on December 13, 2012, in which: plaintiff seeks an order 23 24 reversing the Commissioner s decision and remanding this case for the 25 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) Dockets.Justia.com 1 payment of benefits; and the Commissioner requests that her decision be 2 affirmed 3 proceedings. or, alternatively, remanded for further administrative 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 Plaintiff filed an application for a period of disability and DIB 8 on December 5, 2007. (Administrative 9 Plaintiff, who was born on June 8, 1970,2 claims to have been disabled 10 since September 13, 2006 (A.R. 16, 191). 11 work experience as construction worker. Record ( A.R. ) 191, 261.) Plaintiff has past relevant (A.R. 22.) 12 13 After the Commissioner denied plaintiff s claims initially (A.R. 14 123-27), plaintiff requested a hearing (A.R. 128). On May 12, 2009, 15 plaintiff, who was represented by counsel, appeared and testified at a 16 hearing before Administrative Law Judge Robert S. Eisman (the ALJ ). 17 (A.R. 70-104.) 18 On June 5, 2009, the ALJ denied plaintiff s claim. (A.R. 109-15.) Vocational expert Freeman Leeth also testified. (Id.) 19 20 Plaintiff requested review of the ALJ s decision (A.R. 264-69), and 21 the Appeals Council subsequently vacated the ALJ s decision and remanded 22 the case to the ALJ for further proceedings (A.R. 119-122). 23 Order, the Appeals Council ordered the ALJ to: 24 of disability in [plaintiff] s case through December 31, 2007, the date 25 that he last met the insured status requirements of the Social Security In its (1) [r]ule on the issue 26 27 28 2 On the alleged onset date, plaintiff was 36 years old, which is defined as a younger individual. (A.R. 22; citing 20 C.F.R. § 404.1563.) 2 1 Act ; (2) [g]ive further consideration to [plaintiff] s maximum [RFC] 2 and provide appropriate rationale with specific references to evidence 3 of record in support of the assessed limitations ; and (3) [i]f 4 warranted by the expanded record, obtain supplemental evidence from a 5 vocational expert to clarify the effect of the assessed limitations on 6 [plaintiff] s occupational base. (A.R. 121.) 7 8 9 On September 14, 2010, plaintiff again appeared and testified before the ALJ. (A.R. 29-57.) Vocational expert Joseph Torres and 10 medical expert William Temple, M.D. also testified. (Id.) On October 11 1, 2010, the ALJ denied plaintiff s claim (A.R. 16-24), and the Appeals 12 Council subsequently denied plaintiff s request for review of the ALJ s 13 decision (A.R. 1-4). That decision is now at issue in this action. 14 15 SUMMARY OF ADMINISTRATIVE DECISION 16 17 In his October 1, 2010 decision, the ALJ found that plaintiff met 18 the insured status requirements of the Social Security Act through 19 December 31, 2007,3 and he has not engaged in substantial gainful 20 activity since September 13, 2006, the alleged onset date of his 21 disability. 22 severe impairments of status post anterior and posterior L4-S1 lumbar 23 spine fusion with internal fixation for degenerative disk disease, with 24 spondylolisthesis and spondylosis, but he does not have an impairment 25 or combination of impairments that meets or medically equals one of the (A.R. 19.) The ALJ determined that plaintiff has the 26 27 28 3 The ALJ also found that plaintiff meets the insured status requirements through September 30, 2012 for Medicare only based upon Medicare Qualified Government Employment. (A.R. 19 n.1.) 3 1 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 2 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id.) 3 4 After reviewing the record, the ALJ determined that plaintiff has 5 the residual functional capacity ( RFC ) to perform sedentary work as 6 defined in 20 C.F.R. § 404.1567(a) from September 13, 2006, the alleged 7 onset date, to June 21, 2007, the date of his surgery. 8 Specifically, the ALJ found that, during this time period, plaintiff 9 could: (A.R. 19.) exert up to 10 pounds of force occasionally and/or exert a 10 negligible amount of force frequently to move objects, including the 11 human body ; stand and walk up to 2 hours and sit up to 6 hours in an 12 8-hour workday with normal breaks ; perform work that does not require 13 climbing ladders, ropes or scaffolds ; perform no more than frequent 14 balancing and kneeling ; perform work that allows for use of a hand- 15 held assistive device for prolonged ambulation, i.e., more than 30 16 minutes, and when walking on uneven terrain or ascending and descending 17 slopes ; and perform work that does not require any exposure to extreme 18 vibration, 19 unprotected heights, 20 conditions. (A.R. 19-20.) 21 that 22 recovery/rehabilitation, which was expected to continue for no more than 23 9-10 months, after which time [plaintiff] could resume sedentary work, 24 including occasional stooping and crouching, with subsequent ability to 25 do light exertion level work with frequent stooping and crouching. 26 (A.R. 20.) and plaintiff any was concentrated or not exposure other high to risk, hazardous hazardous machinery, or unsafe However, as of June 21, 2007, the ALJ found able to work due to surgery and needed 27 28 The ALJ found that plaintiff was unable to perform his past 4 1 relevant work as a construction worker. 2 his RFC assessment for plaintiff and after having considered plaintiff s 3 age, education,4 work experience, and the testimony of the vocational 4 expert, the ALJ found that there are jobs that exist in significant 5 numbers in the national economy that [plaintiff] can perform, including 6 the jobs of order clerk, cable worker, and product sorter. 7 23.) 8 a disability, as defined in the Social Security Act, from September 13, 9 2006, the alleged onset date, through December 31, 2007, the date last 10 (A.R. 22.) However, based upon (A.R. Accordingly, the ALJ concluded that plaintiff has not been under insured. (A.R. 24.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 15 decision to determine whether it is free from legal error and supported 16 by substantial evidence in the record as a whole. 17 F.3d 625, 630 (9th Cir. 2007). 18 evidence as a reasonable mind might accept as adequate to support a 19 conclusion. 20 a mere scintilla but not necessarily a preponderance. 21 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 22 record can constitute substantial evidence, only those reasonably drawn 23 from the record will suffice. 24 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 25 26 Although this Court cannot substitute its discretion for that of 27 4 28 The ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 22.) 5 1 the Commissioner, the Court nonetheless must review the record as a 2 whole, weighing both the evidence that supports and the evidence that 3 detracts from the [Commissioner s] conclusion. 4 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 5 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 6 responsible for determining credibility, resolving conflicts in medical 7 testimony, and for resolving ambiguities. 8 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 9 10 The Court will uphold the Commissioner s decision when the evidence 11 is susceptible to more than one rational interpretation. Burch v. 12 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 13 review only the reasons stated by the ALJ in his decision and may not 14 affirm the ALJ on a ground upon which he did not rely. 15 at 630; see also Connett, 340 F.3d at 874. 16 the Commissioner s decision if it is based on harmless error, which 17 exists only when it is clear from the record that an ALJ s error was 18 inconsequential to the ultimate nondisability determination. Robbins 19 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 20 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 21 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 22 23 DISCUSSION 24 25 Plaintiff claims the ALJ erred by not considering 26 properly: (1) the opinions of plaintiff s treating physicians; and 27 (2) plaintiff s subjective symptoms and credibility. (Joint Stipulation 28 ( Joint Stip. ) at 4-8, 11-14, 16-17.) 6 1 I. The ALJ Failed To Set Forth Appropriate Reasons For 2 Rejecting The 3 Opinions Of Plaintiff s Treating Physicians. 4 5 It is the responsibility of the ALJ to analyze evidence and resolve 6 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 7 (9th Cir. 1989). 8 assessing a social security claim, [g]enerally, a treating physician s 9 opinion carries more weight than an examining physician s, and an 10 examining physician s opinion carries more weight than a reviewing 11 physician s. 12 2001); 20 C.F.R. § 404.1527(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 13 14 The opinions of treating physicians are entitled to the greatest 15 weight, because the treating physician is hired to cure and has a better 16 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 17 a treating physician s opinion is not contradicted by another physician, 18 it may be rejected only for clear and convincing reasons. 19 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 20 doctor, a treating physician s opinion may only be rejected if the ALJ 21 provides specific and legitimate reasons supported by substantial 22 evidence in the record. Lester v. When contradicted by another Id. 23 24 A. Dr. Williams 25 26 In his 27 Williams, 28 examining, decision, M.D., an medical the ALJ orthopedic expert rejected surgeon, William 7 E. the in opinion favor Temple, of M.D., of Lytton that an of A. non- orthopedic 1 surgeon, because: (1) Dr. Williams is a physician who treated 2 [plaintiff] for workers compensation purposes, i.e., for the specific 3 purpose of examining and treating [plaintiff] because he applied for 4 workers compensation benefit, which raises a specter of bias ; and 5 (2) Dr. Williams rendered an opinion that plaintiff was disabled and/or 6 unable to work -- a determination which is reserved to the Commissioner. 7 (A.R. 21-22.) 8 9 The ALJ s first reason for rejecting Dr. McLennan s opinion -- to 10 wit, that a specter of bias is raised, because Dr. Williams is a 11 workers compensation physician -- is unavailing. The ALJ has failed to 12 point to, and the record does not contain, any evidence of impropriety 13 or bias on the part of Dr. Williams. 14 Secretary may not assume that doctors routinely lie in order to help 15 their patients collect disability benefits )(citation omitted); see 16 also Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)(noting that 17 the source of a report is a factor that justifies rejection only if 18 there is evidence of actual impropriety or no medical basis for the 19 opinion). 20 opinion simply because it was initially elicited in a state workers 21 compensation proceeding, or because it is couched in the terminology 22 used in such proceedings. 23 1105 (C.D. Cal. 2002)(citing Coria v. Heckler, 750 F.2d 245, 247 (3d 24 Cir. 1984)(holding that by failing to consider medical reports submitted 25 in state workers compensation proceedings the ALJ failed to weigh all 26 the evidence of record)). 27 not constitute a specific and legitimate reason for rejecting the 28 opinion of Dr. Williams. See Lester, 81 F.3d at 832 ( The Further, an ALJ may not disregard a physician s medical Booth v. Barnhart, 181 F. Supp. 2d 1099, Accordingly, the ALJ s first rationale does 8 1 The ALJ s second reason for rejecting the opinion of Dr. Williams 2 is misguided. While it is true that a treating physician s opinion on 3 the matter of ultimate disability is not determinative or entitled to 4 special weight, a treating physician s medical opinions are generally 5 [entitled] to more weight. 6 (9th Cir. 2008)(citing 20 C.F.R. § 404.1527(d)(2)). 7 reflect[s] judgments about the nature and severity of [a claimant s] 8 impairment(s), 9 prognosis, what [a claimant] can still do despite impairment(s), and [a including Boardman v. Astrue, 286 Fed. Appx. 397, 399 [a claimant s] A medical opinion symptoms, diagnosis and 10 claimant s] physical or mental restrictions. 11 § 404.1527(a)(2)). 12 disabled and/or unable to work, Dr. Williams diagnosed plaintiff with, 13 inter 14 hardware/instrumentation as a result of his lumbar spine fusion (A.R. 15 531), 16 degenerative disc disease at L3-S1 (A.R. 541, 545), and radiculopathy at 17 L4 and L5 (A.R. 549). 18 would have difficulty with prolonged sitting, standing and walking. 19 (A.R. 397.) 20 continued complaints of, inter alia, moderate to severe pain in his 21 lower back and bilateral lower extremities as well as Dr. Williams 22 findings of diminished reflexes at plaintiff s bilateral knees and 23 ankles, positive orthopedic testing, and restricted range of motion, 24 tenderness, and spasms in plaintiff s back.5 alia, chronic a Id. (citing 20 C.F.R. Here, beyond finding that plaintiff was temporarily loose screw lumbosacral at the L4 sprain/strain location (A.R. 536, and 553, painful 556), In addition, Dr. Williams opined that plaintiff Dr. Williams treatment records document plaintiff s 25 26 27 28 5 See, e.g., A.R. 397 (11/25/08 Report - noting plaintiff has moderate constant low back pain and right leg pain and restricted and painful range of motion on flexion, extension, lateral bending and rotation, tenderness and spasms to midline and paraspinal muscles, diminished reflexes to the knees and ankles, decreased motor strength, 9 1 While the Commissioner correctly asserts that most of the treatment 2 records post-date plaintiff s date last insured of December 31, 2007, 3 Dr. Williams records show that plaintiff s spinal surgery resulted in 4 a complication, to wit, a loose screw and painful instrumentation, which 5 resulted in a subsequent hardware removal surgery -- a complication 6 which was not accounted for in the ALJ s RFC assessment. 7 here, the ALJ s RFC assessment for plaintiff provided that as of June 8 21, 2007, [plaintiff] was not able to work due to surgery and needed 9 recovery/rehabilitation, which was expected to continue for not more 10 than 9-10 months, after which time [plaintiff] could resume sedentary 11 work. 12 the testimony 13 opportunity to review Dr. Williams diagnosis of the loose screw, but 14 not his latter diagnosis of painful instrumentation/hardware for which (A.R. 20; emphasis added.) of As relevant In so finding, the ALJ relied upon non-examining physician Dr. Temple, who had the 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as well as positive orthopedic testing including positive straight leg raise on the right with reproduction of back pain and positive Lasegue test on the right ); A.R. 526-27 (10/19/09 Report - noting plaintiff s continued subjective complaints of moderate to severe constant pain in the low back with radiation of pain, numbness and tingling sensation to the bilateral legs, left greater than right, weakness in his bilateral legs, ambulating with a cane, combined with the objective findings of decreased and restricted range of motion of the lumbar spine with flexion, extension and lateral bending, pain with extension, tenderness and spasms to midline and paraspinal muscles[,] abnormal gait, diminished reflexes at the bilateral knees and ankles, decreased motor strength at the bilateral anterior tibialis, EHL and gastroc soleus, decreased sensation to light touch at the left lower extremity, as well as positive orthopedic testing including positive straight leg raising bilaterally with reproduction of back pain and positive Lasegue test bilaterally ); A.R. 522 (12/2/09 Report noting plaintiff s continued subjective complaints of worsened and increasing severe constant pain in the low back and bilateral legs with associated spasm, abnormal motion in his back, increased weight due to inactivity and limitations, [as well as] objective findings of decreased and restricted range of motion with flexion, extension, lateral bending and rotation, pain with extension, tenderness and spasm to midline and paraspinal muscles, diminished reflexes at the bilateral knees and ankles, as well as positive orthopedic testing including positive straight leg raising bilaterally and reproduction of back pain and positive Lasegue test bilaterally ). 10 1 plaintiff had removal surgery.6 2 affected Dr. Temple s opinion regarding plaintiff s recovery time. 3 Given these circumstances, the ALJ s apparent rejection of Dr. Williams 4 opinion on the ground that it also contained an opinion regarding the 5 ultimate issue of disability is not legitimate. 6 Appx. at 399 (finding that while [the fact that the treating physician 7 expressed 8 residual functional] may be a specific reason to reject a treating 9 physician s medical opinion, it is not a legitimate one ).7 an opinion regarding Critically, this evidence could have Boardman s See Boardman, 286 Fed. ultimate disability and 10 11 12 Accordingly, for the aforementioned reasons, the ALJ failed to properly reject the opinion of Dr. Williams. 13 14 B. Dr. North 15 16 In a March 11, 2009 Mental Impairment Questionnaire ( March 11 17 Questionnaire ), Dr. Richard North, who began treating plaintiff in May 18 2008, diagnosed plaintiff with depressive disorder and assessed 19 20 21 22 23 6 Indeed, when asked about plaintiff s later hardware removal surgery, Dr. Temple testified that [o]ne reason [for the surgery] might have been that [plaintiff] had that screw that was loose in there and they may have wanted to inspect the fusion to make sure that it was indeed solid as it was shown on the X-rays. (A.R. 48.) Notably, Dr. Temple s testimony indicates that he was entirely unaware of Dr. Williams painful hardware/instrumentation diagnosis and the resulting pain and symptoms that plaintiff suffered. 24 7 25 26 27 28 Moreover, while it is true that medical source opinions on issues reserved to the Commissioner, such as the determination of claimant s ultimate disability, are not determinative or entitled to special weight based on the source of the medical opinion, it is not true that the Commissioner is free to disregard this information. Social Security Ruling ( SSR ) 96-8p, 1996 SSR LEXIS 5, at *21 n.8. Rather, the ALJ is instructed to consider such opinions in adjudicating a disability claim. Id. 11 1 plaintiff with a GAF score of 63. 2 with respect to the abilities and aptitudes necessary to do unskilled 3 work, plaintiff was [l]imited but satisfactory in his ability to: 4 remember work-like procedures; understand, remember, and carry out very 5 short and 6 segment; work in coordination with or proximity to others without being 7 unduly distracted; perform at a consistent pace without an unreasonable 8 number and length of rest periods; ask simple questions or request 9 assistance; accept instructions and respond appropriately to criticism 10 from supervisors; and get along with co-workers or peers without unduly 11 distracting them or exhibiting behavioral extremes. (A.R. 513-14.) Dr. 12 North further opined that plaintiff would be severely limited in, but 13 not 14 necessary to do unskilled work: 15 punctual 16 ordinary routine without special supervision; complete a normal weekday 17 and work week without interruptions from psychologically based symptoms; 18 respond appropriately to changes in a routine work setting; deal with 19 normal work stress; and be aware of normal hazards and take appropriate 20 precautions. simple precluded instructions; maintain from, within (A.R. 512.) the following customary, Dr. North opined that, attention mental for abilities a and two hour aptitudes maintain regular attendance and be usually strict tolerances; sustain an (Id.) 21 22 With respect to semiskilled and skilled work, Dr. North opined that 23 plaintiff would be [l]imited but satisfactory in his mental abilities 24 and aptitudes to: 25 out 26 independently of others; and deal with the stress of semiskilled and 27 skilled work. 28 aptitudes necessary to do particular types of jobs, Dr. North opined detailed understand and remember detailed instructions; carry instructions; (A.R. 515.) set realistic goals or make plans With respect to the mental abilities and 12 1 that plaintiff would be [l]imited but satisfactory in his ability to: 2 interact 3 appropriate 4 cleanliness; and travel in unfamiliar places. (Id.) 5 that in terms of functional limitations, plaintiff would have None- 6 Mild : 7 maintaining 8 persistence, 9 impairments or treatment, Dr. North opined that plaintiff would be 10 appropriately behaviors; with the adhere general public; basic standards to maintain of socially neatness and Dr. North opined restrictions of activities of daily living; difficulties in social or functioning; pace. (A.R. and 516.) deficiencies As a absent from work more than four days per month. of result concentration, of plaintiff s (Id.) 11 12 In his decision, the ALJ failed to mention, let alone give an 13 appropriate reason for rejecting, the opinion of Dr. North. 14 constitutes error. While it is true, as the Commissioner contends, that 15 Dr. North s March 11 Questionnaire post-dates plaintiff s date last 16 insured (Joint Stip. at 11), the Ninth Circuit has held that [m]edical 17 evaluations made after the expiration of a claimant s insured status are 18 relevant to the pre-expiration conditions. 19 1222, 1225 (9th Cir. 1988), reaffirmed in Lester, 81 F.3d at 832. 20 this case, there is evidence that plaintiff suffered from depression 21 both prior to, and after, his date last insured. 22 alleged in his Exertional Daily Activities Questionnaire dated December 23 28, 2007, that he was depressed. 24 addition, 25 testified that his depression stemmed from his 2006 injury and that he 26 had been seen by a psychiatrist for approximately 12 sessions and was 27 currently taking medication for his depression. (A.R. 84-86.) Further, 28 at the September 14, 2010 administrative hearing, Dr. Temple, the at the May 12, 2009 Smith v. Bowen, 849 F.2d In For example, plaintiff (See, e.g., A.R. 219, 221.) Administrative 13 This Hearing, In plaintiff 1 medical expert to whom the ALJ gave great weight, noted that plaintiff 2 has a psychiatric diagnosis of depression which is not unusual in these 3 cases. 4 [plaintiff] 5 intensity, frequency, persistence and limiting effects of [his] mental 6 and physical symptoms. 7 view of this evidence, the Court cannot find the ALJ s failure to 8 address Dr. North s opinion -- an opinion which may have shed light on 9 plaintiff s pre-expiration condition -- to be harmless. Thus, remand is 10 (A.R. 42.) has made Indeed, in his decision, the ALJ noted that several allegations concerning (A.R. 20; emphasis added.) the nature, Accordingly, in appropriate.8 11 12 II. The ALJ Failed To Give Clear And Convincing Reasons For 13 Finding 14 Plaintiff s Subjective Symptoms To Be Not Credible. 15 16 Once a disability claimant produces objective medical evidence of 17 an underlying impairment that is reasonably likely to be the source of 18 claimant s subjective symptom(s), all subjective testimony as to the 19 severity of the symptoms must be considered. 20 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 21 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain 22 and other symptoms are evaluated). 23 malingering based on affirmative evidence thereof, he or she may only 24 find an applicant not credible by making specific findings as to Moisa v. Barnhart, 367 [U]nless an ALJ makes a finding of 25 8 26 27 28 Although the Commissioner now offers other reasons to explain the ALJ s rejection of the opinion of Dr. North, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 ( We review only the reasons provided by the ALJ in the disability determination and may not affirm on a ground upon which he did not rely ). 14 1 credibility 2 each. 3 weighing 4 reputation for 5 claimant s testimony 6 conduct; (3) the claimant s daily activities; (4) the claimant s work 7 record; and (5) testimony from physicians and third parties concerning 8 the nature, severity, and effect of the symptoms of which the claimant 9 complains. 10 and stating clear and Robbins, 466 F.3d at 883. a claimant s or (2) between reasons for The factors to be considered in credibility truthfulness; convincing include: (1) inconsistencies the claimant s the claimant s either in the testimony and her See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 404.1529(c). 11 12 An ALJ may not rely on a plaintiff s daily activities to support an 13 adverse credibility determination when those activities do not affect 14 the claimant s ability to perform appropriate work activities on an 15 ongoing and daily basis. 16 Cir. 1990). 17 claimant s ability to work on a sustained basis. 18 (emphasis in original; citation omitted). 19 utterly incapacitated to be eligible for benefits . . . and many home 20 activities are not easily transferable to what may be the more grueling 21 environment 22 periodically rest or take medication. 23 (9th Cir. 1989)(internal citations omitted). Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th As the Ninth Circuit noted in Lester, the ALJ must evaluate of the workplace, where it 81 F.3d at 833 A claimant need not be might be impossible to Fair v. Bowen, 885 F.2d 597, 603 24 25 In his Exertional Daily Activities Questionnaire, plaintiff 26 indicated, inter alia, that his pain keeps [him] from walking, sitting, 27 standing, and twisting. 28 to carry out a normal workday, because: (A.R. 219.) 15 Plaintiff noted that he is unable (1) he experiences weakness in 1 his legs when he stands and walks; and (2) his medications make him feel 2 drowsy and tired, and he experiences dry mouth. 3 he can walk for 8 minutes at a speed of 1.2 miles per hour, but [i]t 4 makes [him] feel tired, weak, and makes [his] legs weak. 5 also stated that he can climb 6 to 8 flights [of stairs] a day[, but] 6 it s very difficult for [him] because of the pain in [his] back. (A.R. 7 220.) (A.R. 8 219, 221.) (Id.) Plaintiff stated (Id.) Additionally, plaintiff indicated that he is depressed. He 9 10 At the May 12, 2009 Administrative Hearing, plaintiff testified 11 that he is taking Cyclobenzaprine, Norco, Lyrica, and Lidoderm patches 12 for his pain as well as Lexapro and Cymbalta for his depression. 13 80.) Plaintiff testified that these medications make him experience dry 14 mouth and drowsiness as well as not feel 100 percent clear [in his] 15 mind. 16 testified that he uses electrical stimulation [a]bout three or four 17 hours a [day], . . . for thirty minutes [at a time] to treat his pain 18 (A.R. 83); he also testified that he uses a cane, which was given to him 19 by his doctor, when he ambulates and when he is sitting to help 20 alleviate the pressure on his back (A.R. 86, 92). (A.R. 92-93.) (A.R. In addition to his medications, plaintiff 21 22 As noted supra, the ALJ found that plaintiff has the severe 23 impairments of: status post anterior and posterior L4-S1 lumbar spine 24 fusion with internal fixation for degenerative disk disease, with 25 spondylolisthesis and spondylosis. (A.R. 19.) The ALJ also found that 26 [plaintiff] s medically determinable impairments could reasonably be 27 expected to cause the alleged symptoms. 28 cited no evidence of malingering by plaintiff. 16 (A.R. 20.) Further, the ALJ Accordingly, the ALJ s 1 reason for discrediting plaintiff s subjective complaints must be clear 2 and convincing. 3 4 The ALJ found that [plaintiff] s statements concerning the 5 intensity, persistence and limiting effects of [his] symptoms are not 6 credible to the extent they are inconsistent with [the ALJ s RFC] 7 assessment. 8 reference the findings and conclusions of his June 5, 2009 decision, 9 which, according to the ALJ, included a detailed analysis of the 10 objective medical evidence and other credibility factors which do not 11 fully support [plaintiff] s complaints and render his assertions only 12 partially credible. (A.R. 20.) In so finding, the ALJ incorporated by (Id.) 13 14 In his June 5, 2009 decision, while the ALJ discussed the objective 15 evidence, the ALJ did not give any clear and convincing reasons for 16 finding plaintiff s subjective symptoms to be only partially credible. 17 Specifically, the ALJ stated: 18 19 In determining [plaintiff] s [RFC], great weight has been 20 accorded to the opinion of the State Agency medical consultant 21 who found [plaintiff] capable of performing sedentary work 22 with occasional postural restrictions. 23 consistent with the objective clinical and diagnostic findings 24 of ongoing lower back pain resulting in surgery and possible 25 future surgery due to loose hardware. Nevertheless, in giving 26 [plaintiff] s subjective allegations full consideration and 27 benefit of the doubt, the [ALJ] has additionally factored in 28 to the [RFC] the need to use a hand-held assistive device for 17 Such restrictions are 1 prolonged ambulation and walking on uneven terrain, and the 2 need to avoid hazardous and unsafe working conditions. 3 4 [Plaintiff] s own self-reported activities of daily living 5 also support the [RFC]. [Plaintiff] has indicated that he can 6 walk 1.2 miles per hour and apparently walk for 8 minutes at 7 a time. 8 him tired, he can walk 6-8 flights of stairs a day. 9 allegations, while demonstrating significant restrictions in 10 the ability to sustain prolonged ambulation, nevertheless, 11 support a [RFC] of standing/walking for 2 hours per 8-hour 12 workday with normal breaks. 13 lift 5 pounds is also consistent with a restriction of lifting 14 no more than 10 pounds occasionally lifting small office items 15 or tools. [Plaintiff] has also stated that although it leaves Such His allegations of being able to 16 17 (A.R. 113; internal citations omitted.) 18 19 Although not entirely clear, to the extent the ALJ rejects 20 plaintiff s subjective symptoms because they are not supported by the 21 objective evidence, the failure of the medical record to corroborate a 22 claimant s subjective symptoms fully is not, by itself, a legally 23 sufficient basis for rejecting such testimony. 24 261 F.3d 853, 856 (9th Cir. 2001); Bunnell, 947 F.2d at 347 (noting that 25 [i]f an adjudicator could reject a claim of disability simple because 26 [plaintiff] fails to produce evidence supporting the severity of the 27 pain, there would be no reason for an adjudicator to consider anything 28 other than medical findings ). Accordingly, the ALJ s reasoning cannot, 18 Rollins v. Massanari, 1 by itself, constitute a clear and convincing reason for rejecting 2 plaintiff s subjective symptoms. See Varney v. Secretary, 846 F.2d 581, 3 584 (9th Cir. 1988); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 4 1986). 5 6 To the extent the ALJ finds plaintiff to be not credible because of 7 his daily activities, the ALJ s reasoning is flawed. 8 that 9 inconsistency between the claimant s daily activities and his alleged an ALJ may find a claimant not credible While it is true if there is an 10 symptoms, the ALJ has failed to identify any such inconsistency. See 11 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)( Only if the level 12 of activity were inconsistent with Claimant s claimed limitations would 13 these activities have any bearing on Claimant s credibility. ). 14 such, the ALJ s reasoning is neither clear nor convincing. As 15 16 Moreover, although the ALJ states that plaintiff s RFC is supported 17 by the objective evidence and to a certain degree [by plaintiff] s own 18 allegations regarding his functional abilities, the ALJ failed to give 19 any reason for failing to credit the full extent of plaintiff s alleged 20 functional limitations. 21 that he cannot lift or carry more than five pounds or walk for more than 22 8 minutes at a speed of 1.2 miles an hour without feeling tired and 23 weak in his legs. 24 that plaintiff, except for the time that he was recovering from surgery, 25 could 26 limitations and includes lifting up to 10 pounds, walking up to two 27 hours, and sitting up to six hours in an eight-hour workday with normal 28 breaks. perform For example, as noted supra, plaintiff alleged Notwithstanding these allegations, the ALJ opined sedentary work - work that exceeds plaintiff s Critically, however, the ALJ failed to explain why he did not 19 1 find plaintiff s 2 reconciled the differences between plaintiff s alleged symptoms and the 3 RFC 4 depression and/or the side effects of plaintiff s medications, which 5 cause him to feel tired and drowsy and have dry mouth. 6 Shalala, 9 F.3d 813, 817-18 (th Cir. 1993)(noting that an ALJ must 7 consider all factors, including the side effects of medications, that 8 might have a significant impact on an individual s ability to work ). 9 This constitutes error. assessment. allegations Further, to the be ALJ fully failed credible to and/or discuss how he plaintiff s See Erickson v. 10 11 Accordingly, for the aforementioned reasons, the ALJ committed 12 error, because he failed to give clear and convincing reasons, as 13 required, for finding plaintiff to be not credible.9 14 15 III. Remand Is Required. 16 17 The decision whether to remand for further proceedings or order an 18 immediate award of benefits is within the district court s discretion. 19 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 20 useful purpose would be served by further administrative proceedings, or 21 where the record has been fully developed, it is appropriate to exercise 22 this discretion to direct an immediate award of benefits. 23 ( [T]he decision of whether to remand for further proceedings turns upon 24 the likely utility of such proceedings. ). Where no Id. at 1179 However, where there are 25 26 27 28 9 While the Commissioner now offers other reasons to explain the ALJ s credibility determination, the Court cannot entertain these post hoc rationalizations. See, e.g., Connett, 340 F.3d at 874 (finding that [i]t was error for the district court to affirm the ALJ s credibility decision based on evidence that the ALJ did not discuss ). 20 1 outstanding issues that must be resolved before a determination of 2 disability can be made, and it is not clear from the record that the ALJ 3 would be required to find the claimant disabled if all the evidence were 4 properly evaluated, remand is appropriate. Id. at 1179-81. 5 6 Remand is the appropriate remedy to allow the ALJ the opportunity 7 to remedy the above-mentioned deficiencies and errors. 8 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 9 further proceedings is appropriate if enhancement of the record would be see Dodrill v. Shalala, 12 F.3d 915, 918 See, e.g., 10 useful); (9th Cir. 11 1993)(ordering remand so that the ALJ could articulate specific and 12 appropriate findings, if any existed, for rejecting the claimant s 13 subjective pain testimony). 14 mentioned deficiencies and errors. 15 reassess plaintiff s RFC, in which case additional testimony from a 16 vocational expert likely will be needed to determine what work, if any, 17 plaintiff can perform. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// On remand, the ALJ must correct the aboveAfter doing so, the ALJ may need to 21 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: July 1, 2013 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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