Kristen P Corsi v. Michael J Astrue, No. 2:2012cv02243 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be enteredREVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (ad)
Download PDF
<![CDATA[
O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KRISTEN CORSI, 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-2243-SP MEMORANDUM OPINION AND ORDER I. INTRODUCTION On March 23, 2012, plaintiff Kristen Corsi filed a complaint against defendant Michael J. Astrue, seeking a review of a denial of a period of disability, Disability Insurance Benefits ( DIB ), and Supplemental Security Income benefits ( SSI ). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument. A single disputed issue is presented for decision here: whether the 1 1 Administrative Law Judge ( ALJ ) properly evaluated plaintiff s credibility and 2 subjective symptoms. 3 Having carefully studied, inter alia, the parties s written submissions, the 4 Administrative Record ( AR ), and the decision of the ALJ the court concludes 5 that, as detailed herein, the ALJ improperly considered plaintiff s credibility. 6 Consequently, this court remands this matter to the Commissioner of the Social 7 Security Administration ( Commissioner ) in accordance with the principles and 8 instructions enunciated in this Memorandum Opinion and Order. 9 II. 10 FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff, who was 40 years old on the alleged disability onset date, April 1, 12 2006, completed two years of college. AR at 47, 85, 90, 241. Her past relevant 13 work includes employment as a sales representative and an office clerk. Id. at 5514 56, 237. 15 On August 31, 2007, plaintiff protectively filed an application for SSI. Id. 16 at 78, 222-226. Plaintiff also protectively filed an application for DIB on 17 September 12, 2007. Id. at 79, 227-229. She alleged disability beginning on April 18 1, 2006, due to leukemia and hypertension. Id. at 222, 227, 232, 236. The 19 Commissioner denied plaintiff s application initially and upon reconsideration, 20 after which she filed a request for a hearing. Id. at 112-121, 124. 21 On June 16, 2009, plaintiff, represented by counsel, appeared and testified 22 at a hearing before the ALJ. Id. at 44-77. Two supplemental hearings took place 23 on October 13, 2009 and January 21, 2010, at which plaintiff, represented by 24 counsel, appeared and testified. Id. at 5-43. A medical expert and two vocational 25 experts also variously testified at these hearings. Id. at 7-11, 23-25, 33-39, 48-55. 26 The ALJ denied benefits on March 3, 2010. Id. at 82-100. 27 28 2 1 Applying the well-known five-step sequential evaluation process, the ALJ 2 found, at step one, that plaintiff has not engaged in substantial gainful activity 3 since April 1, 2006, the alleged onset date. Id. at 88. 4 At step two, the ALJ found that plaintiff suffered from the following severe 5 impairments: treated pancytopenia, fatty liver disease, treated neuropathy possibly 6 related to alcohol dependence, alcohol dependence, and depression. Id. If the 7 plaintiff stopped the substance use, the ALJ found that she would continue to 8 suffer from a severe impairment or combination of impairments. Id. at 91. 9 At step three, the ALJ found that plaintiff s impairments, including the 10 substance use disorder, did not meet or medically equal one of the listed 11 impairments set forth in the Listings. Id. at 88. Furthermore, the ALJ found that 12 this would remain unchanged even if plaintiff stopped the substance use. Id. at 91 The ALJ then assessed plaintiff s residual functional capacity ( RFC )1 and 13 14 determined that she had the RFC to perform light work with the following 15 limitations: plaintiff could stand/walk two hours a day; could sit eight hours a day, 16 with normal breaks; could lift/carry ten pounds frequently and twenty pounds 17 occasionally; could occasionally stoop and bend; could climb stairs; but could not 18 climb ladders, work at heights, balance, operate motorized machinery, work 19 around unprotected machinery, or operate foot pedals or controls. Id. at 89, 92. 20 Additionally, when the substance use disorder is considered, plaintiff would be 21 22 23 24 25 26 27 28 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 off-task 20% of the time because of symptoms or absences from work, but this 2 additional limitation would not apply if plaintiff stopped the substance use. Id. 3 The ALJ found, at step four, that plaintiff was unable to perform her past 4 relevant work, regardless of whether she stopped the substance use. Id. at 90, 99. 5 At step five, the ALJ found that, with her substance abuse disorder, there 6 are no jobs existing in significant numbers that plaintiff can perform. Id. at 90. 7 But the ALJ further found that, if plaintiff stopped the substance use, there would 8 be a significant number of jobs in the national economy that plaintiff could 9 perform. Id. at 99. Consequently, the ALJ found that if plaintiff stopped the 10 substance use she would not be disabled, and therefore the substance use disorder 11 is a contributing factor material to the determination of disability. Id. at 100. As 12 such, the ALJ found plaintiff is deemed not disabled under the Social Security Act 13 from the alleged date of onset through the date of the ALJ s decision. Id. at 86, 14 100. 15 On April 15, 2010, plaintiff requested that the Appeals Council review the 16 ALJ s decision. Id. at 211. The Appeals Council denied plaintiff s request on for 17 review on January 23, 2012 (id. at 105-110), and the ALJ s decision therefore 18 stands as the final decision of the Commissioner. 19 III. 20 STANDARD OF REVIEW 21 This court is empowered to review decisions by the Commissioner to deny 22 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner 23 must be upheld if they are free of legal error and supported by substantial 24 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as 25 amended). But if the court determines that the ALJ s findings are based on legal 26 error or are not supported by substantial evidence in the record, the court may 27 28 4 1 reject the findings and set aside the decision to deny benefits. Aukland v. 2 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 3 1144, 1147 (9th Cir. 2001). 4 Substantial evidence is more than a mere scintilla, but less than a 5 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 6 relevant evidence which a reasonable person might accept as adequate to support 7 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 8 F.3d at 459. To determine whether substantial evidence supports the ALJ s 9 finding, the reviewing court must review the administrative record as a whole, 10 weighing both the evidence that supports and the evidence that detracts from the 11 [AC s] conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 12 affirmed simply by isolating a specific quantum of supporting evidence. 13 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 14 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 15 the ALJ s decision, the reviewing court may not substitute its judgment for that 16 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 17 1992)). 18 IV. 19 DISCUSSION 20 Plaintiff contends that the ALJ failed to properly consider plaintiff s 21 testimony. P. Mem. at 6-11. Specifically, plaintiff argues that the reasons the ALJ 22 provided for discounting plaintiff s credibility were not clear and convincing. Id. 23 at 7-11. The court agrees that the ALJ erred in discounting plaintiff s credibility. 24 A plaintiff carries the burden of producing objective medical evidence of his 25 or her impairments and showing that the impairments could reasonably be 26 expected to produce some degree of the alleged symptoms. Benton ex rel. Benton 27 28 5 1 v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). But once a plaintiff meets that 2 burden, medical findings are not required to support the alleged severity of pain. 3 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. 4 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ( [A] claimant need not 5 present clinical or diagnostic evidence to support the severity of his pain. ) 6 (internal citation omitted). 7 Under these circumstances, an ALJ can reject a plaintiff s subjective 8 complaint only upon (1) finding evidence of malingering, or (2) expressing clear 9 and convincing reasons for doing so. Benton, 331 F.3d at 1040. The ALJ may 10 consider the following factors in weighing a plaintiff s credibility: (1) his or her 11 reputation for truthfulness; (2) inconsistencies either in the plaintiff s testimony or 12 between the plaintiff s testimony and his or her conduct; (3) his or her daily 13 activities; (4) his or her work record; and (5) testimony from physicians and third 14 parties concerning the nature, severity, and effect of the symptoms of which she 15 complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 16 The ALJ here did not expressly make a first step finding, but it is implied 17 that there was objective medical evidence of an underlying impairment that could 18 reasonably be expected to produce the symptoms alleged. See Lingenfelter v. 19 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ did not find evidence of 20 malingering. See generally AR at 89-99. Thus, in rejecting plaintiff s credibility 21 the ALJ was required to articulate clear and convincing reasons. See Benton, 331 22 F.3d at 1040. The court is persuaded that, of the three reasons the ALJ provided 23 for discounting plaintiff s credibility, only one is clear and convincing. 24 First, the ALJ noted that the plaintiff had a pecuniary interest in the 25 outcome of the hearing or is otherwise motivated by secondary gain. Id. at 94. 26 Multiple courts have recognized the obvious, namely, that every claimant who 27 28 6 1 applies for disability benefits does so with the intent of pecuniary gain, as that is 2 the purpose of applying for disability benefits, and therefore such interest in not a 3 valid basis to discount a claimant s credibility. See, e.g., Ratto v. Secretary, Dept. 4 of Health and Human Services, 839 F.Supp. 1415, 1429 (D. Or. 1993) ( If the 5 desire or expectation of obtaining benefits were by itself sufficient to discredit a 6 claimant s testimony, then no claimant (or their spouse, or friends, or family) 7 would ever be found credible. ); Taguines v. Astrue, No. ED CV 11 1315 PLA, 8 2012 WL 2805029, at *4 (C.D. Cal. July 6, 2012) ( [T]he ALJ s finding that 9 plaintiff had a pecuniary interest in the outcome of his case was not a clear and 10 convincing reason to find plaintiff less than credible. ); cf. Franklin v. Astrue, No. 11 ED CV 09-1117-VBK, 2010 WL 330239, at *2 n.3 (C.D. Cal. Jan. 21, 2010) 12 ( The ALJ s additionally noted reason, that Plaintiff s husband is biased because 13 he has a financial interest in seeing Plaintiff receive Social Security benefits, is not 14 an appropriate reason to depreciate lay witness credibility. ). This court likewise 15 finds that the ALJ s statement about plaintiff s financial interest is not a clear and 16 convincing reason to discount plaintiff s credibility. 17 Second, the ALJ asserted that the plaintiff s evidence was inconsistent with 18 or contradicted by prior statements or other evidence in the record. AR at 94. 19 Although the ALJ fails to clearly give examples of which piece(s) of plaintiff s 20 evidence fell short in this way, he appears to be referring to his assertion that 21 plaintiff gave evidence which exaggerated or magnified the facts and/or the 22 [plaintiff s] symptoms. Id. Specifically, the ALJ notes plaintiff s testimony that 23 she goes weekly to City of Hope medical facility for treatment and is there all day 24 for her appointment, when only a few treatment records reflect appointments that 25 might take a few hours. Id. Given a fair reading of the record, the ALJ appears to 26 have mischaracterized plaintiff s testimony. 27 28 7 1 Nowhere in the record does plaintiff say that she is at City of Hope all day 2 for her appointment. When plaintiff provided details about her City of Hope 3 appointments, she explained that her appointments lasted most of the day because: 4 I go and I get my blood drawn and that takes an hour to get the results back, and 5 then my doctor always runs late and so it s usually like a four-hour, four or five6 hour day, and from Riverside to [Duarte] is not really an easy drive. Id. at 72. 7 Plaintiff said further that getting her blood drawn lasted an hour and her 8 appointments were [a]bout a half-an-hour, a little bit longer. Id. The only times 9 that the City of Hope appointments were characterized as lasting the whole day 10 was when plaintiff s attorney asked whether going to City of Hope was an all day 11 affair, to which plaintiff said yes. Id. at 17, 59. Plaintiff s statements about the 12 length of her appointments at City of Hope hardly seem to be exaggerated, and the 13 record does not bear out the ALJ s assertion that she declared that she was at City 14 of Hope all day for her appointments. Therefore, plaintiff s alleged 15 exaggeration or magnification of the facts/her symptoms is not a clear and 16 convincing reason to discount her credibility, as it does not appear that she 17 exaggerated or magnified anything. 18 Finally, the ALJ noted that he took into consideration the appearance and 19 demeanor of the claimant as a witness at the hearing in concluding that plaintiff 20 was not fully credible. Id. at 94. The ALJ observed that plaintiff sat for as long as 21 40-50 minutes at the hearing without changing positions, despite the fact that she 22 testified that the longest she could sit was 10 minutes. Id. Specifically, when 23 asked how long she could sit in a working position . . . scooted [] up to [a] desk 24 with pen and paper working, plaintiff replied probably ten minutes. Id. at 64. 25 An ALJ s reliance upon personal observations at the hearing has been 26 condemned as sit and squirm jurisprudence. See Perminter v. Heckler, 765 F.2d 27 28 8 1 870, 871 (9th Cir. 1985) (per curiam) ( Denial of benefits cannot be based on the 2 ALJ s observation of [plaintiff], when [plaintiff s] statements to the contrary, as 3 here, are supported by objective evidence. ). Nonetheless, the Ninth Circuit has 4 noted that the inclusion of the ALJ s personal observations does not render the 5 decision improper. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 6 (citation omitted). And an ALJ s observations that a plaintiff engaged in behavior 7 at the hearing that was inconsistent with that plaintiff s complaints have been held 8 adequate to justify an ALJ s discounting of plaintiff s credibility. See Quang Van 9 Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989). The observations of the ALJ 10 in the instant case concerning the inconsistency between plaintiff s testimony and 11 her actions do appear legitimate, and may constitute a clear and convincing reason 12 supported by substantial evidence to discount plaintiff s credibility. 13 However, because this court concludes that two of the ALJ's three reasons 14 for his adverse credibility finding are invalid, it must determine whether the ALJ s 15 reliance on such reasons was harmless error. Carmickle v. Commissioner, Social 16 Sec. Admin., 533 F.3d 1155, 1162 citing Batson v. Comm'r of Soc. Sec. Admin., 17 359 F.3d 1190, 1195-97 (9th Cir.2004) (applying harmless error standard where 18 one of the ALJ s several reasons supporting an adverse credibility finding was 19 held invalid). The Ninth Circuit explained in Batson that reviewing the ALJ s 20 credibility determination where the ALJ provides specific reasons supporting such 21 is a substantive analysis. So long as there remains substantial evidence 22 supporting the ALJ's conclusions on . . . credibility and the error does not negate 23 the validity of the ALJ's ultimate [credibility] conclusion, such is deemed 24 harmless and does not warrant reversal. Carmickle, 522 F.3d at 1162 (citations 25 omitted). 26 27 28 9 1 Here, the ALJ s reliance upon invalid reasons to discount plaintiff s 2 credibility outweighed his reliance upon a valid one. As such, the court cannot 3 say confidently that, excluding invalid reasons, substantial evidence remains to 4 support the ALJ s conclusion. See Swanson v. Astrue, No. C12 510 RSM BAT, 5 2012 WL 5844690, at *5 (W.D. Wa. Oct. 31, 2012). The court therefore finds the 6 ALJ s errors in evaluating plaintiff s credibility were not harmless, and the issue 7 should be reconsidered on remand. 8 V. 9 REMAND IS APPROPRIATE 10 The decision whether to remand for further proceedings or reverse and 11 award benefits is within the discretion of the district court. McAllister v. Sullivan, 12 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 13 further proceedings, or where the record has been fully developed, it is appropriate 14 to exercise this discretion to direct an immediate award of benefits. See Benecke 15 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 16 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 17 turns upon their likely utility). But where there are outstanding issues that must be 18 resolved before a determination can be made, and it is not clear from the record 19 that the ALJ would be required to find plaintiff disabled if all the evidence were 20 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 21 Harman, 211 F.3d at 1179-80. 22 Here, as set out above, remand is required because the ALJ erred in failing 23 to properly evaluate plaintiff s credibility. On remand, the ALJ shall reconsider 24 plaintiff s subjective complaints and the resulting limitations, and either credit 25 plaintiff s testimony or provide clear and convincing reasons supported by 26 27 28 10 1 substantial evidence for rejecting it. The ALJ shall then proceed through steps 2 four and five to determine what work, if any, plaintiff is capable of performing. 3 VI. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that Judgment shall be entered 6 REVERSING the decision of the Commissioner denying benefits, and 7 REMANDING the matter to the Commissioner for further administrative action 8 consistent with this decision. 9 10 11 DATED: January 9, 2013 12 SHERI PYM United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
