Barbara J Deden v. Michael J Astrue, No. 2:2012cv07080 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BARBARA J. DEDEN, ) NO. CV 12-7080-MAN ) Plaintiff, ) ) MEMORANDUM OPINION v. ) ) AND ORDER CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) _________________________________) 17 18 Plaintiff filed a Complaint on August 21, 2012, seeking review of the denial by the Social 19 Security Commissioner ( Commissioner ) of plaintiff s application for a period of disability ( POD ), 20 disability insurance benefits ( DIB ), and supplemental security income ( SSI ). On November 21 15, 2012, the parties 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 May 3, 2013, 23 in which: plaintiff seeks an order reversing the Commissioner s decision and remanding for further 24 administrative proceedings; and the Commissioner requests that her decision be affirmed or, 25 alternatively, remanded for further administrative proceedings. 26 27 28 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).) 1 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On June 10, 2009, plaintiff filed an application for SSI. (Administrative Record ( A.R. ) 11, 4 136-38.) On July 29, 2009, plaintiff filed an application for a POD and DIB. (A.R. 11, 139-42.) 5 In both applications, plaintiff alleged an inability to work since July 29, 2005, due to [p]revious 6 history of seizures caused by a brain tumor, [h]ematoma [and] confusion when I had surgery, 7 [c]hronic depression, [m]issing disc in lower back, and [l]eaking pad in upper back. (A.R. 8 144.) At the reconsideration level, plaintiff additionally alleged [d]epression is worsening, high 9 blood pressure is not going down despite weight loss, edema is not going down and is present 10 upon waking in a.m., as well as an enlarged heart and sleep apnea. (A.R. 158, 167.) 11 12 The Commissioner denied plaintiff's claim initially (A.R. 69-74) and upon reconsideration 13 (A.R. 76-81). On February 9, 2011, plaintiff, who was represented by counsel, appeared and 14 testified at a hearing before Administrative Law Judge Eric Benham (the ALJ ). (A.R. 11, 24-59.) 15 Vocational expert Aida Worthington also testified. (Id.) On March 18, 2011, the ALJ denied 16 plaintiff s claim (A.R. 11-18), and the Appeals Council subsequently denied plaintiff s request for 17 review of the ALJ s decision (A.R. 1-7). That decision is now at issue in this action. 18 19 SUMMARY OF ADMINISTRATIVE DECISION 20 21 The ALJ found that plaintiff last met the insured status requirements of the Social Security 22 Act on December 31, 2009, and that she has not engaged in substantial gainful activity since the 23 alleged onset date of July 29, 2005. (A.R. 13.) The ALJ determined that plaintiff has the severe 24 impairments of obesity, congestive heart failure, back and knee pain, but she does not have an 25 impairment or combination of impairments that meets or medically equals one of the listed 26 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 27 404.1526, 416.920(d), 416.925, 416.926). (A.R. 13-14.) 28 2 1 After reviewing the record, the ALJ determined that plaintiff has the residual functional 2 capacity ( RFC ) to perform light work as defined in 20 C.F.R. [§§] 404.1567(b) and 416.967(b) 3 except occasional postural activities [and] occasional handling and fingering with right non- 4 dominant hand. (A.R. 14.) 5 6 The ALJ found that plaintiff was able to perform her past relevant work as a claims clerk, 7 credit clerk, general clerk, and telephone solicitor as generally performed. (A.R. 18.) 8 Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the 9 Social Security Act, since July 29, 2005, the alleged onset date. (Id.) 10 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision to determine 14 whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 15 625, 630 (9th Cir. 2007). Substantial evidence is such relevant evidence as a reasonable mind 16 might accept as adequate to support a conclusion. Id. (citation omitted). The evidence must 17 be more than a mere scintilla but not necessarily a preponderance. Connett v. Barnhart, 340 18 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial 19 evidence, only those reasonably drawn from the record will suffice. Widmark v. Barnhart, 454 20 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 21 22 Although this Court cannot substitute its discretion for that of the Commissioner, the Court 23 nonetheless must review the record as a whole, weighing both the evidence that supports and 24 the evidence that detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of Health 25 and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 26 (9th Cir. 1985). The ALJ is responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 28 3 1 1995). 2 3 The Court will uphold the Commissioner s decision when the evidence is susceptible to 4 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 5 However, the Court may review only the reasons stated by the ALJ in his decision and may not 6 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d at 630; see also Connett, 7 340 F.3d at 874. The Court will not reverse the Commissioner s decision if it is based on harmless 8 error, which exists only when it is clear from the record that an ALJ s error was inconsequential 9 to the ultimate nondisability determination. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 10 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 11 F.3d at 679. 12 DISCUSSION 13 14 15 Plaintiff alleges the following issues: (1) whether the ALJ properly found her depression 16 to be nonsevere; (2) whether the ALJ properly considered plaintiff s subjective complaints; (3) 17 whether the ALJ properly considered the combination of her impairments in his RFC 18 determination; and (4) whether the ALJ properly considered if she can perform her past relevant 19 work. (Joint Stipulation ( Joint Stip. ) at 5-8, 10-16, 18-20, 23-26, 28-29.) 20 21 22 I. The ALJ Should Revisit His Step Two Determination Regarding Plaintiff s Depression On Remand. 23 24 25 Plaintiff contends that the ALJ s determination that her depression was not a severe impairment is not supported by substantial evidence. (Joint Stip. at 5-8.) 26 27 At step two of the sequential evaluation process, the ALJ is tasked with identifying a 28 4 1 claimant's severe impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and 2 (c). A severe impairment is one that significantly limits [a claimant s] physical or mental ability 3 to do basic work activities. 2 20 C.F.R. §§ 404.1520(c), 416.920(c). Despite use of the term 4 severe, most circuits, including the Ninth Circuit, have held that the step-two inquiry is a de 5 minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 6 (9th Cir. 1996)(emphasis added). Accordingly, [a]n impairment or combination of impairments 7 may be found not severe only if the evidence establishes a slight abnormality that has no more 8 than a minimal effect on [a claimant's] ability to work. Webb v. Barnhart, 433 F.3d 683, 686 87 9 (9th Cir.2005) (citation omitted; emphasis in original). When determining whether an impairment 10 is severe, a claimant's age, education, and work experience will not be considered. 20 C.F.R. §§ 11 404.1520(c), 416.920(c). 12 13 At step two of the sequential evaluation process, the ALJ determined that plaintiff has the 14 severe impairments of obesity, congestive heart failure, and back and knee pain. (A.R. 13.) 15 The ALJ determined, however, that plaintiff s mental impairment of depression does not cause 16 more than minimal limitation in [plaintiff] s ability to perform basic mental work activities and is 17 therefore nonsevere. (Id.) 18 A. 19 Review of Plaintiff s Mental Records 20 21 A November 25, 2008 Adult Initial Assessment from the Long Beach Mental Health Center 22 ( LBMHC ) indicated that plaintiff s eye contact was normal, her speech was unimpaired, her 23 interaction style was congruent and cooperative, she was oriented, her motor activity was calm, 24 but her mood was dysphoric, her affect was constricted, her associations were loose and 25 tangential, and her condition was [n]ot [s]table. (A.R. 187.) It was noted, inter alia, that 26 27 28 Basic work activities are the abilities and aptitudes necessary to do most jobs. 20 C.F.R. §§ 404.1521(a), 416.921(b). 2 5 1 plaintiff had a depressed mood, some sleep disturbances, a raging appetite, and memory 2 problems. (A.R. 188.) Plaintiff was diagnosed with major depression, recurrent, moderate with 3 a history of panic attacks, and she was assessed a Global Assessment of Functioning ( GAF ) 4 score of 60, indicating moderate symptoms.3 (A.R. 188.) The psychiatrist recommended groups, 5 primarily. (Id.) Plaintiff went to group therapy sessions called either Self Esteem Group - 6 Assertive Training or Activity Clubhouse in January, June, August, September, October, and 7 November of 2009. (A.R. 547, 549, 551-53, 569-72, 574-75, 577, 579-81, 583, 586.) 8 9 On January 12, 2009, a progress note from LBMHC indicated that plaintiff was well 10 groomed, her speech was soft, her thought process was unimpaired, her concentration was intact, 11 her mood was euthymic, but her affect was worried. (A.R. 550.) Plaintiff s major issues were 12 listed as follows: 13 14 sad, discouraged, low self-esteem, worthless, lonely, isolated, loss of pleasure, 15 tired, difficulty sleeping or sleeping too much, [and] decreased or increased 16 appetite. 17 Moderate/Severe depression. [Beck Anxiety Inventory ( BAI )] Score 36 - Severe 18 Anxiety - Anxious, worried, nervous, fearful, apprehensive - sense of impending 19 doom, feels tense, stressed, difficulty concentrating, restless, . . . tense, tight 20 muscles, tired, [and] weak. [Beck Depression Inventory ( BDI )] Score 51 - Borderline 21 22 (Id.) Plaintiff was again assessed a GAF score of 60. (Id.) 23 24 A GAF score is the clinician s judgment of the individual s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, at 32 (4th Ed. 2000). A GAF of 51 60 shows moderate symptoms, such as those which would affect speech, or moderate difficulty in social, occupational, or school functioning. Id. 3 25 26 27 28 6 1 On October 11, 2009, consultative psychiatrist Neda Javaherian, M.D. performed a 2 complete psychiatric evaluation of plaintiff. (A.R. 14; 250-54.) Plaintiff denie[d] a[ny] past 3 psychiatric hospitalizations, did see a psychiatrist once in the past and was put on BuSpar but her 4 insurance ran out. (A.R. 251.) According to Dr. Javaherian, on mental examination: plaintiff 5 maintained good eye contact; she was able to establish rapport with the examiner; her 6 psychomotor activity was within normal limits; her speech was fluent with normal prosody, rate, 7 and rhythm; her affect was mildly restricted; and her thought processes were concrete, linear, 8 and goal directed with no loosening of associations, flight of ideas, racing thoughts, thought 9 blocking, thought insertions, thought withdrawal, or thought broadcasting. (A.R. 252.) Plaintiff s 10 concentration, abstract thinking, fund of knowledge, insight, and judgment were within normal 11 limits. (Id.) Dr. Javaherian did note, however, that plaintiff appears to have increased sleep, 12 feelings of worthlessness and guilt, decreased energy and anhedonia. 13 Javaherian also noted that plaintiff appeared mildly depressed throughout the interview. (Id.) 14 Accordingly, Dr. Javaherian diagnosed plaintiff with Major Depressive Disorder, Single Episode, 15 Moderate and found that plaintiff s prognosis was fair. (A.R. 254.) Dr. Javaherian assessed 16 plaintiff with a GAF score of 60 and opined that plaintiff would have a mild impairment in her 17 ability to cope with work place stress. (Id.) (A.R. 253.) Dr. 18 19 State Agency reviewing physician Dr. L.O. Mallare reviewed plaintiff's medical records and 20 completed a Psychiatric Review Technique form on November 24, 2009. (A.R. 266-78.) Dr. 21 Mallare noted that plaintiff suffered from affective disorder but opined that impairment was not 22 severe. (A.R. 266.) In addition, Dr. Mallare concluded that: plaintiff would experience no 23 functional limitations in activities of daily living or in maintaining social functioning; would not 24 suffer repeated episodes of decompensation of an extended duration; but would be mildly limited 25 in maintaining concentration, persistence, and pace. (A.R. 274.) 26 27 After the ALJ rendered his decision, plaintiff submitted a two-page letter from treating 28 7 1 physician John Kassabian, M.D.4 and psychologist Peter Jay, PhD. (A.R. 589-90.)5 The letter 2 indicates they had treated plaintiff since July 17, 2008, for a history of mental stress, 3 hypertension, depression, anxiety, fatigue, and arthritis. (A.R. 589.) The letter further indicates 4 that plaintiff s anxiety and depression are emotional factors that contribute to the severity of her 5 symptoms and functional limitations and concludes that plaintiff is incapable of even low stress 6 with regard to work stress. (Id.) The letter states that the symptoms and limitations described 7 in the Multiple Impairment/Questionnaire that was completed on 8/29/2008[] [r]emain in effect 8 and that plaintiff remains disabled from any full-time work. 6 (Id.) 9 B. 10 The ALJ s Decision Regarding Plaintiff s Depression 11 12 The ALJ determined plaintiff s depression was not severe, because: (1) plaintiff s 13 depression was not considered sufficiently serious to require treatment with psychotropic 14 medications; and (2) the medical evidence does not demonstrate that plaintiff s depression caused 15 severe mental limitations. (A.R. 14.) The ALJ s reasons are unpersuasive. 16 17 18 19 20 21 22 23 24 25 26 27 28 Although spelled as Kassabiean in the undated letter, his treatment notes reflect his name spelled as Kassabian. (See e.g., A.R. 474, 476, 478.) Thus, the Court will refer to him as Dr. Kassabian. 4 The Appeals Council considered the letter, which it made part of the Administrative Record, but determined that the evidence d[id] not provide a basis for changing the [ALJ]'s decision (A.R. 1-2.) Notwithstanding the Appeals Council's determination, this Court must consider such evidence in determining whether the ALJ's decision is supported by substantial evidence and free from legal error. See Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)(holding that when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence ). 5 The letter further noted that laboratory findings and testing results have shown hernia, abnormal ankle brachial, disc disease (in low back), major depression, hypertension, gerd, sleep apnea, and hyper ventilating. (A.R. 589.) Dr. Kassabian and Dr. Jay opined that plaintiff cannot sit nor stand or work long enough in an 8-hour workday to sustain any full time work. (Id.) Plaintiff should take breaks in between walking and standing times, sit for 15 minutes as needed for flexing of the joints, and is markedly limited in using her hand and fingers for fine manipulations and using arms for reaching (including overhead). (Id.) Plaintiff is also precluded from pushing, pulling, kneeling, bending, or stooping. (Id.) 6 8 1 The ALJ s first reason for finding plaintiff s depression to be nonsevere conflicts with the 2 evidence of record. Although plaintiff testified at the administrative hearing that she did not use 3 psychotropic medication right now, she expressly acknowledged her use of such medication in 4 the past. (A.R. 33.) Indeed, the medical record supports plaintiff s assertion that she had been 5 prescribed various medications -- i.e., BuSpar, Ativan, and Valium -- to treat her depression and 6 anxiety. (See, e.g., 251 (BuSpar), 566 (Ativan, Buspar, and prior use of Valium).) However, and 7 significantly, plaintiff stopped taking her medication, because her insurance ran out. (A.R. 251 - 8 noting that plaintiff was put on BuSpar but her insurance ran out.) As such, the ALJ s reasoning 9 on this point is ill-founded. 10 11 Next, to the extent the ALJ found plaintiff s depression to be nonsevere because plaintiff 12 was not assessed with severe limitations, the ALJ s reasoning is unconvincing. As an initial 13 matter, plaintiff has the burden of showing only that her impairment more than minimally limits 14 her ability to perform basic work activities -- a de minimis standard. As noted supra, Dr. 15 Javaherian diagnosed plaintiff with major depressive disorder, single episode, moderate, 16 assessed plaintiff with a GAF score of 60, opined that plaintiff was mildly impaired in her ability 17 to cope with work place stress, and found plaintiff s prognosis to be fair. 18 conducting her examination of plaintiff, Dr. Javaherian explicitly noted that [t]here [we]re no 19 mental health records in [plaintiff s] chart for her to review. (A.R. 250.) Dr. Javaherian, 20 therefore, based her assessment on an incomplete picture of plaintiff s condition. The regulations 21 require that a consultative examiner be given all necessary background information about the 22 plaintiff s condition. 20 C.F.R. §§ 404.1517, 416.917. Background information is essential, 23 because consultative exams are utilized to try to resolve a conflict or ambiguity if one exists. 24 20 C.F.R. §§ 404.1519a(b), 416.919a(b). 25 plaintiff s impairment(s) and limitation(s) without a complete review of plaintiff s medical records, 26 the Court cannot conclude that Dr. Javaherian s opinion constitutes substantial evidence that 27 supports the ALJ s reasoning on this point. However, in Consequently, because Dr. Javaherian assessed 28 9 1 Further, while Dr. Mallare reviewed the then-available medical record of evidence, it 2 appears that he relied, perhaps significantly, on the opinion of Dr. Javaherian and the fact that 3 plaintiff was not taking psychotropic medication in finding plaintiff s impairment to be nonsevere. 4 (A.R. 276 - Consultants Notes cite no current prescription and mention Dr. Javaherian s finding 5 that plaintiff was mildly depressed with grossly intact cognition.) 6 Javaherian s opinion was not based upon a proper review of the medical evidence, and it appears 7 that plaintiff was prescribed psychotropic medications, but could not afford them due to a lack 8 of insurance. Thus, the ALJ s decision to afford significant weight to Dr. Mallare s opinion also 9 may constitute error. As noted supra, Dr. 10 11 Moreover, there is significant medical evidence of record indicating that plaintiff s 12 depression meets the more than de minimis severity standard at step two of the sequential 13 evaluation process. 14 diagnosed with moderate major depressive disorder with a history of panic attacks. (A.R. 188.) 15 In his decision, the ALJ gave short shrift to the LBMHC Adult Initial Assessment. The ALJ stated 16 that the assessment shows a depressed mood with panic attacks and a generally normal 17 mental evaluation, except that [plaintiff] exhibited a dysphoric mood, constricted affect, and 18 loose tangential associations. (A.R. 14.) Notably, however, the ALJ never mentioned the fact 19 that plaintiff s condition was found to be not stable or that she was found to have memory 20 problems, sleeping disturbances, and a GAF score of 60. (A.R. 187-88.) Further, the ALJ never 21 gave any reason, let alone an appropriate reason, for rejecting these findings. As noted supra, in the LBMHC Adult Initial Assessment, plaintiff was 22 23 In addition, as noted supra, a January 12, 2009 progress note from LBMHC indicates that 24 plaintiff has moderate to severe mental impairments. (A.R. 550.) For example, plaintiff was 25 reported as having: a BDI score of 51, indicating moderate/severe depression; a BAI score of 36, 26 indicating severe anxiety; and a GAF score of 60, indicating moderate symptoms. (Id.) None of 27 28 10 1 these test results were discussed by the ALJ.7 2 3 Finally, the letter submitted to the Appeals Counsel from Dr. Kassabian and Dr. Jay, who 4 have treated plaintiff since July 17, 2008, for, inter alia, depression and anxiety, notes that: 5 plaintiff s anxiety and depression are emotional factors that contribute to the severity of her 6 symptoms and functional limitations ; plaintiff is incapable of even low stress with regard to work 7 stress ; and plaintiff remains disabled from any full-time work. 8 (A.R. 589-90.) 8 9 10 Accordingly, based on the aforementioned evidence, the ALJ must revisit his severity determination with respect to plaintiff s depression.9 11 12 II. The ALJ Failed To Provide The Requisite Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony. 13 14 15 Once a disability claimant produces objective medical evidence of an underlying impairment 16 that is reasonably likely to be the source of claimant s subjective symptom(s), all subjective 17 testimony as to the severity of the claimant s symptoms must be considered. Moisa v. Barnhart, 18 Although the ALJ did not acknowledge the above-noted GAF score of 60, the ALJ did acknowledge that Dr. Javaherian assessed plaintiff with a GAF score of 60 on October 11, 2009. (A.R. 14.) The ALJ noted that a GAF score of 60 indicates moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks or moderate difficulty in social, occupation, or school functioning (e.[g]. few friends, conflicts with peers or co-workers)[)]. (Id.) The ALJ appeared to give the score little weight, noting that 60 is very close to mild symptoms and such [a] score is only a snapshot in time, which does not portray [plaintiff] s condition for a continuous 12-month period. (A.R. 14.) While the ALJ was quick to dismiss Dr. Javaherian s GAF score as a one-time snapshot of plaintiff s condition, plaintiff has repeatedly been assessed with a GAF score of 60 for a period of at least 12 months. (See, e.g., A.R. 188 (11/25/08 - GAF Score of 60); A.R. 550 (11/12/09 - same); A.R. 254 (10/11/09 - same).) 7 19 20 21 22 23 24 The letter also states that symptoms and limitations described in the Multiple Impairment/Questionnaire that was completed on 08/29/2008. . . . [r]emain in effect. (A.R. 590.) The cited 2008 Questionnaire does not appear to be in the record, and therefore, further development of the record may be appropriate. 8 25 26 27 28 In addition, the ALJ should specifically consider whether plaintiff s edema constitutes a severe impairment. 9 11 1 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 2 20 C.F.R. §§ 404.1629(a), 416.929(a) (explaining how pain and other symptoms are evaluated). 3 [U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she 4 may only find an applicant not credible by making specific findings as to credibility and stating 5 clear and convincing reasons for each. Robbins, 466 F.3d at 883. The factors to be considered 6 in weighing a claimant s credibility include: (1) the claimant s reputation for truthfulness; (2) 7 inconsistencies either in the claimant s testimony or between the claimant s testimony and her 8 conduct; (3) the claimant s daily activities; (4) the claimant s work record; and (5) testimony from 9 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 10 the claimant complains. See Thomas, 278 F.3d at 958-59; see also 20 C.F.R. §§ 404.1529(c), 11 416.929(c). 12 13 Here, the ALJ concluded that [a]fter careful consideration of the evidence, . . . [plaintiff] s 14 medically determinable impairments could reasonably be expected to cause the alleged 15 symptoms. (A.R. 15.) Significantly, the ALJ cited no evidence of malingering by plaintiff. 16 Nonetheless, the ALJ determined that plaintiff s statements concerning the intensity, persistence 17 and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with 18 the above [RFC] assessment. (A.R. 15-16.) Accordingly, the ALJ s reasons for finding that 19 plaintiff was not credible with respect to his subjective symptom and pain testimony must be 20 clear and convincing. 21 22 The ALJ rejected plaintiff s testimony regarding the severity of her pain symptoms, 23 because: (1) plaintiff s subjective complaints and alleged limitations are out of proportion to the 24 objective medical evidence; (2) plaintiff s treatment has been essentially routine and/or 25 conservative in nature; and (3) there is no evidence of muscle atrophy that would be compatible 26 with plaintiff s inactivity and inability to function. (A.R. 15.) 27 28 12 1 During the hearing, plaintiff testified that she is unable to work because of her severe 2 depression. (A.R. 31.) She also is unable to sit for long periods of time (id.) and must elevate 3 her legs for several hours a day due to the edema in her legs (A.R. 34-35). Plaintiff testified that, 4 due to surgery to remove a brain tumor, she has mentally slowed down. (A.R. 31-32.) She also 5 has a missing disc in her lower back and a slipped disc in her upper back, which make it hard for 6 her to sit or stand for long periods of time. (A.R. 32.) Plaintiff testified further that she has pain 7 and osteoarthritis in her knees (A.R. 32) and carpal tunnel syndrome (A.R. 33). 8 9 With respect to the ALJ s first ground, even assuming arguendo that the objective medical 10 evidence did not corroborate the degree of plaintiff s allegedly disabling symptoms, this factor 11 cannot form the sole basis for discounting plaintiff s subjective symptom testimony. Burch, 400 12 F.3d at 681; see Bunnell, 947 F.2d at 34 (noting that [i]f an adjudicator could reject a claim of 13 disability simply because a claimant fails to produce medical evidence supporting the severity of 14 the pain, there would be no reason for an adjudicator to consider anything other than medical 15 findings ). Accordingly, because the ALJ s first ground cannot, by itself, constitute a clear and 16 convincing reason for discrediting plaintiff s testimony, the ALJ s credibility determination rises or 17 falls with the ALJ s other grounds for discrediting plaintiff. 18 19 The ALJ s second ground for discounting plaintiff s credibility -- to wit, that plaintiff s 20 testimony is inconsistent with her routine and conservative treatment -- is not clear and 21 convincing. (A.R. 15-16.) In his decision, the ALJ specifically noted that plaintiff admitted that 22 she does not take medication for her depression. (A.R. 15.) While it is true that conservative 23 or infrequent treatment can be used by an ALJ to refute allegations of disabling pain, it is not 24 a proper basis for rejecting the claimant s credibility where the claimant has a good reason for not 25 seeking more aggressive treatment. Carmickle v. Comm r of SSA, 533 F.3d 1155, 1162 (9th Cir. 26 2008). As discussed above, it appears that plaintiff was prescribed medication to treat her 27 depression, but her insurance ran out. Given the fact that plaintiff may have lacked insurance to 28 13 1 pursue more aggressive treatment for her depression, and perhaps for her other alleged 2 impairments, the ALJ s reasoning does not constitute a clear and convincing reason for 3 discrediting plaintiff. 4 5 The ALJ's final reason for discounting plaintiff's credibility -- to wit, that there is no 6 evidence of severe disuse muscle atrophy that would be compatible with her alleged inactivity and 7 inability to function -- is also not clear and convincing. (AR 15.) The ALJ cites no medical 8 opinion or medical literature to the effect that someone with plaintiff s alleged degree of 9 impairment necessarily would have severe disuse muscle atrophy. Further, plaintiff s testimony 10 was that she is unable to stand or sit for long periods of time, not that she is completely 11 incapacitated. (A.R. 45-46.) Thus, without more, a lack of muscle atrophy does not rise to the 12 level of a clear and convincing reason for discounting plaintiff's credibility. 13 14 15 Accordingly, for the aforementioned reasons, the ALJ failed to provide clear and convincing reasons, as required, for finding plaintiff to be not credible. 16 17 III. On Remand, The ALJ Must Review And Reconsider Plaintiff s Remaining Claims. 18 19 20 Based on the foregoing, there are several matters that the ALJ needs to review and 21 reconsider on remand. As a result, the ALJ s conclusion regarding plaintiff s RFC and her ability 22 to do her past relevant work may change. Therefore, the Court does not reach plaintiff s 23 remaining claims. To properly review and consider these claims, the ALJ must correct the above- 24 mentioned errors. Further, to the extent that plaintiff s RFC is reassessed, additional testimony 25 from a vocational expert likely will be required to determine what work, if any, plaintiff can 26 perform. 27 28 14 1 IV. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an immediate award of 4 benefits is within the district court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 5 2000). Where no useful purpose would be served by further administrative proceedings, or where 6 the record has been fully developed, it is appropriate to exercise this discretion to direct an 7 immediate award of benefits. Id. at 1179 ( [T]he decision of whether to remand for further 8 proceedings turns upon the likely utility of such proceedings. ). However, where there are 9 outstanding issues that must be resolved before a determination of disability can be made, and 10 it is not clear from the record that the ALJ would be required to find the claimant disabled if all 11 the evidence were properly evaluated, remand is appropriate. Id. at 1179-81. 12 13 Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above- 14 mentioned deficiencies and errors. Careful consideration must be given to properly address and 15 correct the above-mentioned deficiencies and errors, particularly in view of plaintiff s nearly 16 advanced age at the time the ALJ issued his decision10 and her litany of severe and non-severe 17 impairments (including, inter alia, obesity (A.R. 377, 473), congestive heart failure (A.R. 13), back 18 and knee pain (A.R. 247, 249, 256, 262-63, 258, 499), depression/anxiety (A.R. 188, 253-54, 276- 19 78, 377, 550, 584-85), edema (A.R. 198, 307), post right temporal lobotomy (A.R. 235, 564), 20 right temporal encephalomalacia (A.R. 330), diastolic dysfunction of the heart (A.R. 305, 352), 21 cardiomegaly (enlarged heart) (A.R. 499), heart palpitations (A.R. 256, 305), chest pain (id.), 22 hypertension (id.), recurrent shortness of breath (A.R. 256), post acute transient ischemic attack 23 (A.R. 330), sleep apnea and somnolence (A.R. 256, 377), carpal tunnel syndrome (223-24), GERD 24 (A.R. 198, 377), bursitis (A.R. 237), kidney problems (A.R. 247), dysuria(A.R. 236, 240), and a 25 hernia (A.R. 247)). The Court notes, for example, that although the ALJ mentioned plaintiff s 26 edema, he never specifically determined whether it constitutes a severe or nonsevere impairment, 27 10 28 Plaintiff was 10 days shy of advanced age at the time the ALJ issued his decision. 15 1 and he did not sufficiently address, or give appropriate reasons for rejecting, her alleged postural 2 limitations, including her asserted need to elevate her legs for several hours a day. Accordingly, 3 on remand, the ALJ must: revisit his severity determinations; give appropriate reasons, if they 4 exist, for rejecting plaintiff s subjective symptom testimony; and properly consider plaintiff s 5 severe and nonsevere impairments in assessing her RFC and determining what work, if any, she 6 can perform. 20 C.F.R. §§ 404.1545(a)(2); 416.945(a)(2) (ALJ must consider both severe and 7 nonsevere impairments in making the RFC assessment). 8 CONCLUSION 9 10 11 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the 12 Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with 13 this Memorandum Opinion and Order. 14 15 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 16 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 21 22 DATED: November 26, 2013 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 16
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