Ana Marina Heyboer v. Carolyn W. Colvin, No. 2:2012cv07128 - Document 26 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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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 17 ANA MARINA HEYBOER, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-7128-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY 20 ORDERED that Plaintiff s and Defendant s motions for summary judgment 21 are denied and this matter is remanded for further administrative action 22 consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on August 27, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on September 20, 1 2012. Plaintiff filed a motion for summary judgment on February 27, 2 2013. Defendant filed a motion for summary judgment on May 13, 2013. 3 The Court has taken the motions under submission without oral argument. 4 See L.R. 7-15; Order, filed August 29, 2012. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 On or about October 23, 2007, Plaintiff applied for disability insurance benefits (Administrative Record ( A.R. ) 109-13). Plaintiff 10 asserts disability since May 1, 2005, based primarily on alleged back 11 problems stemming from two work-related injuries (A.R. 38-40, 109, 123- 12 24). 13 At a June 4, 2009 administrative hearing, Plaintiff testified that she 14 suffers from back pain of allegedly disabling severity (A.R. 43-45, 48- 15 54, 56-57). 16 Workers Compensation Board for back surgery (A.R. 47). Plaintiff s last insured date was December 31, 2008 (A.R. 117).1 At that time, Plaintiff was awaiting approval from the 17 18 On June 16, 2009, an Administrative Law Judge ( ALJ ) found that 19 Plaintiff has the following conditions of ill-being significantly 20 limiting her ability to work: 21 nucleus pulposus at L4-5; radiculopathy of the lumbar spine at L5; and chronic low back syndrome; herniated 22 23 24 25 26 27 28 1 To be eligible for disability insurance benefits, Plaintiff must have become disabled prior to the expiration of her insured status. See 42 U.S.C. § 416(i)(2)(C), 416(i)(2)(D), 416(i)(3)(A); 20 C.F.R. 404.131; see also Vertigan v. Halter, 260 F.3d 1044, 1047 (9th Cir. 2001); Flaten v. Secretary of Health and Human Services, 44 F.3d 1453, 1458 (9th Cir. 1995) (where claimants apply for benefits after the expiration of their insured status based on a current disability, the claimants must show that the current disability has existed continuously since some time on or before the date their insured status lapsed ). 2 1 grade I spondylolithesis of L4 on L5 (A.R. 11 (citing 20 C.F.R. § 2 404.1520(c) (defining a severe impairment ), and adopting treating 3 physician s diagnosis at, e.g., A.R. 257)). 4 notwithstanding these impairments, Plaintiff assertedly retains the 5 residual functional capacity for a full range of sedentary work (A.R. 6 12, 14 (adopting in part consultative orthopedic examiner and state 7 agency physician opinions at A.R. 174-86, 363-70)). The ALJ applied the 8 Grids to conclude that Plaintiff was not disabled through the date 9 last insured (A.R. 16 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule The ALJ determined that, 10 201.19)).2 11 credible all statements by Plaintiff that were inconsistent with the 12 residual functional capacity the ALJ found to exist (A.R. 14-15). 13 September 21, 2009, the Appeals Council denied review (A.R. 1-3). In finding Plaintiff able to work, the ALJ deemed not On 14 15 During an ensuing action in this Court, the parties stipulated to 16 a voluntary remand (A.R. 519-22). The Appeals Council then remanded the 17 case to the ALJ, stating in particular that the opinion of Plaintiff s 18 treating physician, (which the ALJ claimed was not inconsistent with 19 Plaintiff s residual functional capacity for the full range of sedentary 20 work) was in fact inconsistent with a capacity for the full range of 21 sedentary work (A.R. 516). 22 ALJ s credibility determination was insufficient (A.R. 516-17). 23 accordance with the parties stipulation, the Appeals Council ordered 24 the ALJ to: (1) give further consideration to Dr. Shintaku s treating 25 physician opinion and to request evidence or clarification from Dr. The Appeals Council also indicated that the 26 2 27 28 If Plaintiff had been 50 years old on the date last insured (instead of 49 years old), the Grids would have directed that Plaintiff was disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.10. 3 In 1 Shintaku, if necessary; (2) further evaluate Plaintiff s credibility; 2 and (3) if warranted, obtain vocational expert opinion evidence (A.R. 3 517, 521-22). 4 5 On remand, the ALJ did not seek clarification or additional 6 evidence from Dr. Shintaku. 7 examinations 8 interrogatories 9 interrogatories), 628-37 (psychological evaluation and assessment), 640- 10 50 (orthopedic consultation and assessment)). The ALJ asserted that the 11 new evidence supported a greater residual functional capacity, i.e., the 12 ability to perform light work (A.R. 463 (citing A.R. 613 (hypothetical 13 question)).3 14 jobs existed that Plaintiff could perform (A.R. 470 (citing A.R. 613- 15 14)). and did (A.R. The ALJ did order additional consultative obtain 460, vocational 463, 470, expert 610-16 testimony (vocational via expert Even so, according to the vocational expert, no light work 16 17 Despite having ordered and considered the new evidence, the ALJ 18 rejected all of this evidence as allegedly irrelevant to the time period 19 at issue (A.R. 463, 470). 20 ruling, finding that Plaintiff suffered from the same impairments, had 21 the same residual functional capacity and, (again relying on Rule 201.19 22 of the Grids), was not disabled prior to the date last insured (A.R. The ALJ then largely repeated his 2009 23 3 24 25 26 27 28 This assertion appears to be in error since the orthopedic consultant opined that Plaintiff would be able to carry 10 pounds occasionally and less than 10 pounds frequently, and could stand and walk less than two hours a day using a cane, with sitting for six hours per day with regular change of position. See A.R. 643 (consultant s functional assessment); compare A.R. 646 (consultant s form indicating that Plaintiff would be able to stand two hours per day and walk two hours per day). 4 1 463-64, 469-70). The Appeals Council again denied review (A.R. 457-59). 2 3 4 STANDARD OF REVIEW 5 6 Under 42 U.S.C. section 405(g), this Court reviews the 7 Administration s decision to determine if: (1) the Administration s 8 findings are supported by substantial evidence; and (2) the 9 Administration used correct legal standards. See Carmickle v. 10 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 11 499 F.3d 1071, 1074 (9th Cir. 2007). 12 relevant evidence as a reasonable mind might accept as adequate to 13 support a conclusion. 14 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 15 454 F.3d 1063, 1067 (9th Cir. 2006). Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 16 17 DISCUSSION 18 19 After the Appeals Council s remand order, the ALJ purported to 20 state additional reasons for rejecting the opinion of Plaintiff s 21 treating physician and for rejecting Plaintiff s credibility. 22 Plaintiff asserts that these reasons are legally insufficient. 23 Court agrees. 24 /// 25 /// 26 /// 27 /// 28 I. The The ALJ Erred in the Evaluation of Evidence from Plaintiff s 5 1 Treating Physicians. 2 3 A treating physician s conclusions must be given substantial 4 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 5 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 6 give sufficient weight to the subjective aspects of a doctor s 7 opinion. . . . 8 treating physician ) (citation omitted); see also Orn v. Astrue, 495 9 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to This is especially true when the opinion is that of a 10 treating physician opinions). Even where the treating physician s 11 opinions are contradicted,4 if the ALJ wishes to disregard the 12 opinion[s] of the treating physician he . . . must make findings 13 setting forth specific, legitimate reasons for doing so that are based 14 on substantial evidence in the record. 15 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 16 see Rodriguez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 17 treating physician s opinion, but only by setting forth specific, 18 legitimate reasons for doing so, and this decision must itself be 19 based on substantial evidence. ) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 20 21 In rejecting Dr. Shintaku s opinion, the ALJ once again stated 22 that there appeared to be general agreement between [the ALJ s] 23 residual functional capacity assessment and that of the claimant s 24 workers compensation doctors, regarding the claimant s functional 25 capacity (A.R. 466). The ALJ rejected Dr. Shintaku s finding that 26 4 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 6 1 Plaintiff would have some postural limitations and would require a 2 sit/stand option at work, asserting that these restrictions were: 3 4 . . . inconsistent with the minimal findings on physical 5 examination, such as negative straight-leg raising test, 6 normal sensation and motor function, and no signs of 7 atrophy. 8 are corroborated by equally minimal objective findings, such 9 as negative electrodiagnostic findings of radiculopathy and These unremarkable physical examination findings 10 imaging studies showing no neural impingement. Indeed, Dr. 11 Shintaku s limitations appear to be based on findings, such 12 as tenderness and decreased range of motion in the lumbar 13 spine, that are highly subjective. 14 15 (A.R. 466 (citing A.R. 187-362, 377-400)). In light of the record and 16 the ALJ s other findings, these stated reasons are legally 17 insufficient. 18 19 The record shows that Dr. Shintaku treated Plaintiff at least 20 monthly for her work-related injury from September 23, 2005, until at 21 least May 27, 2009 (A.R. 188-254, 279-93, 382-86, 391-96, 403-24). 22 During this time, Plaintiff complained of, inter alia, pain in her 23 lower back radiating to her right leg, pain in her right hip and 24 buttock, stiffness, pain when walking 10-15 minutes and from prolonged 25 standing (A.R. 191, 194, 196-208, 213-16, 218, 221-25, 382-84). 26 times, Plaintiff presented with a slow, deliberate antalgic gait, 27 tenderness on palpation, and decreased range of motion (A.R. 191-92, 28 197, 203, 207, 209, 214, 391-93, 415-16). 7 At 1 By April 4, 2007, when it became clear that Plaintiff s 2 medications (Celebrex, Vicodin and epidural injections (A.R. 193-94, 3 206-07, 212, 217, 221)) did not relieve her pain, Dr. Shintaku 4 referred Plaintiff to Dr. Liceaga, a pain specialist (A.R. 283-85). 5 Available MRI findings showed: 6 L5; (2) a 2.3 mm disc protrusion at L3-4 that effaces the thecal sac 7 and produces bilateral neuroforaminal encroachment with encroachment 8 on the L3 exiting nerve roots and bilateral facet arthropathy; (3) a 9 3.7 mm disc protrusion at L4-5 that effaces the thecal sac and (1) Grade I spondylolithesis of L4 on 10 produces bilateral neuroforaminal encroachment with encroachment on 11 the L3 exiting nerve roots and bilateral facet arthropathy; (4) subtle 12 disc bulges at T12-L1 through L2-3; and (5) disc desiccation 13 throughout the lumbar spine and decreased disc height and osteophytes 14 at L4-5 (A.R. 348-54 (April 28, 2006 MRI)). 15 conjunction with Dr. Shintaku, giving Plaintiff regular catheter- 16 directed epidural injections for pain (A.R. 305-43, 387-90, 397-400, 17 425-46).5 18 some pain relief but, reportedly, the pain inevitably returned (A.R. Dr. Liceaga worked in At times, Plaintiff reported that the injections gave her 19 20 21 22 23 24 25 26 27 28 5 Dr. Liceaga s treatment records show that at times Plaintiff had positive straight leg raising, Bragard s and Kemp s tests (indicating lumbar radicular pathology and nerve root compression), and Patrick s tests (for sacroiliac joint problems), as well as decreased range of motion (A.R. 306, 313, 320, 325, 328, 331, 335, 338, 342). See Taylor v. Commissioner of Social Sec., 2013 WL 1305291, at *3 nn.2-3 (W.D. Mich. Mar. 28, 2013) (defining Kemp s and Patrick s tests as testing lumbar spine facet joints and pathology of the hip joint or sacrum, respectively); Carroll v. Prudential Ins. Co. Of America, 2010 WL 3070187, at *7 n.11 (S.D. Ohio Aug. 5, 2010) (defining Kemp s test as diagnosing disc and radicular pathology); Dollard v. Astrue, 2008 WL 2186441, at *1 n.2 (W.D. Mo. May 23, 2008) (defining Bragard s test as indicating sciatica and spinal nerve root compression). 8 1 192-225, 382-84, 391-96, 406-18). By January 7, 2009, Dr. Shintaku 2 had prescribed a cane for Plaintiff to assist in her ambulation (A.R. 3 415-16). 4 5 Plaintiff had a second MRI on October 1, 2007 (A.R. 274-75). In 6 addition to the earlier findings, this MRI showed: (1) degenerative 7 disc disease in comparison to the earlier study, with concentric 8 protrusion with posterior annular fissure abutting the traversing 9 nerve roots without significant compression or displacement; (2) mild 10 bilateral foraminal narrowing; (3) facet arthritis that had progressed 11 since the prior study; and (4) synovial cysts along the dorsal aspect 12 of the facet joints bilaterally, more prominent than in the previous 13 study (A.R. 274-75). 14 15 On August 6, 2008, Dr. Shintaku referred Plaintiff for a 16 consultation with Dr. Ali, a spine surgeon (A.R. 385-86). Dr. Ali 17 stated that Plaintiff s symptoms appeared out of proportion to the 18 available diagnostic studies and ordered an updated MRI (A.R. 376). 19 This MRI, done on November 3, 2008, showed: 20 arthropathy at L4-5 with bilateral posterior synovial cysts that were 21 mildly enlarged; (2) an inflammatory variant of degenerative facet 22 arthropathy; (3) the disc protrusion at L4-5 with annular tear, 23 /// 24 unchanged; and (4) dessication at L4-5, unchanged (A.R. 379-80).6 25 Based on these findings, on November 20, 2008, Dr. Ali recommended (1) advanced facet 26 6 27 28 An x-ray from October 2008 also showed degenerative facet changes at the L4-5 and L5-S1 levels, with a 3-4 mm offset at the L4-5 level that was somewhat more prominent on flexion views (A.R. 381). 9 1 surgery, stating: 2 3 [G]iven her symptoms have been debilitating to date and they 4 seem to be correlating with the lateral recess stenosis and 5 foraminal narrowing related to the grade I spondylolisthesis 6 L4-5, I have recommended consideration for surgical 7 treatment at this point. 8 treatments to date including physical therapy, rest, anti- 9 inflammatory medications, and multiple lumbar epidural She has failed all conservative 10 steroid injections. Symptoms are radicular in nature and 11 limit her activity to a debilitating degree. 12 treatment for her would include an anterior and posterior 13 fusion including a minimally invasive posterior approach for 14 the L4-5 level. Surgical 15 16 (A.R. 373-74).7 17 that Plaintiff s symptoms limited her activity to a debilitating 18 degree. 19 Plaintiff s specific limitations. 20 /// 21 /// The ALJ did not expressly consider Dr. Ali s opinion Nor did the ALJ ask Dr. Ali the doctor s opinions concerning 22 23 Meanwhile, Dr. Shintaku was opining as he treated Plaintiff that 24 she had significant functional limitations. In December 2005, Dr. 25 Shintaku opined that Plaintiff could do modified work limited to work 26 not requiring bending, squatting, kneeling, stooping, prolonged 27 7 28 The record suggests that Plaintiff had her back surgery in 2009 (A.R. 641). 10 1 standing, stair climbing, or lifting over 10 pounds (A.R. 252). From 2 January through April 2006, Dr. Shintaku opined that Plaintiff would 3 be totally disabled from work (A.R. 247-51). 4 2006, Dr. Shintaku opined that Plaintiff could do modified work 5 requiring no bending and no lifting over 50 pounds (A.R. 244-46). 6 From August through September 2006, Dr. Shintaku once again opined 7 that Plaintiff could do modified work limited to work not requiring 8 bending, squatting, kneeling, stooping, prolonged standing or lifting 9 over 10 pounds, with the ability to sit, stand, and walk about as From May through July 10 needed to relieve pain (a sit/stand option ) (A.R. 240-43, 289, 296, 11 298). 12 that Plaintiff would be totally disabled (A.R. 228-39). 13 2008, Dr. Shintaku stated that he thought Plaintiff could work if her 14 job requirements were primarily sedentary and would permit a sit/stand 15 option (A.R. 254). 16 believed Plaintiff again was totally disabled from work (A.R. 385- 17 86, 391-96). From September 2007 through March 2008, Dr. Shintaku opined In April From June through August 2008, Dr. Shintaku 18 19 As previously quoted, the ALJ rejected Dr. Shintaku s postural 20 limitations and sit/stand limitations because these limitations 21 assertedly appeared to be based on Plaintiff s subjective complaints 22 and allegedly were inconsistent with the purportedly minimal 23 objective findings on examination (i.e., negative straight leg raising 24 tests, normal sensation and motor function, no signs of atrophy, 25 negative electrodiagnostic findings of radiculopathy, and imaging 26 studies showing no neural impingement) (A.R. 466). 27 not support the ALJ s stated reasoning. 28 discussed more fully below, it appears that Dr. Shintaku relied on 11 The record does As indicated above and as 1 more than just Plaintiff s subjective complaints in formulating the 2 postural and sit/stand limitations. 3 4 First, Dr. Liceaga, who worked in conjunction with Dr. Shintaku 5 and copied Dr. Shintaku on all treatment records, made objective 6 findings on examination of positive straight leg raising, Bragard s, 7 Kemp s, and Patrick s tests, suggesting nerve root compression and 8 radiculopathy. 9 available electrodiagnostic findings from September 2006 were See Footnote 5, supra. Second, while the latest 10 considered normal, earlier findings from January 2006 suggested 11 lumbosacral radiculopathy. 12 elsewhere in his opinion that Plaintiff suffered from severe 13 radiculopathy through the date last insured (A.R. 463). 14 Ali s interpretation of the latest available MRI was that Plaintiff s 15 radiculopathy and other symptoms were consistent with her lateral 16 recess stenosis and foraminal narrowing associated with her 17 spondylolithesis (A.R. 373). 18 opined that the findings were consistent with Plaintiff s symptoms 19 (A.R. 421). See A.R. 170-73. The ALJ acknowledged Third, Dr. Dr. Shintaku also reviewed this MRI and 20 21 If the ALJ had any question as to the basis of Dr. Shintaku s 22 opinion concerning Plaintiff s restrictions, the ALJ should have 23 developed the record on this point, as the Appeals Council previously 24 ordered. 25 404.1512(e), effective through March 25, 2012, which provides that the 26 Administration will seek additional evidence or clarification from 27 your medical source when the report from your medical source contains 28 a conflict or ambiguity that must be resolved, the report does not See A.R. 517 (Appeals Council order citing 20 C.F.R. § 12 1 contain all of the necessary information, or does not appear to be 2 based on medically acceptable clinical and laboratory diagnostic 3 techniques ); see also Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 4 1996) ( If the ALJ thought he needed to know the basis of Dr. 5 Hoeflich s opinions in order to evaluate them, he had a duty to 6 conduct an appropriate inquiry, for example, by subpoenaing the 7 physicians or submitting further questions to them. 8 have continued the hearing to augment the record. ) (citations 9 omitted). He could also The ALJ has a special duty to fully and fairly develop the 10 record and to assure that the claimant s interests were considered, 11 even where (as here) the claimant was represented by counsel. 12 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Brown 13 14 The ALJ did not expressly consider, and the record does not 15 clearly indicate, whether Dr. Shintaku s opinion of Plaintiff s 16 limitations applied to any particular time period(s) prior to the date 17 last insured (other than the reporting periods for the dates the 18 limitations specifically were noted for Plaintiff s workers 19 compensation progress reports). 20 with cryptic opinions that Plaintiff was totally disabled from her 21 past relevant work (see A.R. 466 (ALJ discussing meaning of workers 22 compensation total disability findings)), the temporal scope of Dr. 23 Shintaku s opinion regarding Plaintiff s functional capacity appears 24 uncertain. As these reports are interspersed 25 26 If the limitations Dr. Shintaku found to exist restricted 27 Plaintiff during the relevant time period, the ALJ erred by relying 28 exclusively on the Grids to find Plaintiff not disabled. 13 A person 1 requiring a sit/stand option is incapable of performing the full 2 range of sedentary work. 3 (7th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 4 1984); see also A.R. 516 (Appeals Council acknowledging same in 5 Plaintiff s case). 6 vocational expert to determine whether there existed a significant 7 number of jobs Plaintiff could perform. 8 83-12 (noting that sit/stand option is not consistent with prolonged 9 sitting contemplated by sedentary work; in cases of unusual See Peterson v. Chater, 96 F.3d 1015, 1016 The Administration would have to consult a See Social Security Ruling 10 limitation of ability to sit or stand, a [vocational expert] should be 11 consulted to clarify the implications for the occupational base ); 12 Auckland v. Massanari, 257 F.3d 1033, 1036-37 (9th Cir. 2001) 13 (sit/stand option requires vocational expert testimony since most 14 sedentary jobs require sitting for most or all of the day); see 15 generally Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) 16 ( [T]he grids will be inappropriate where the predicate for using the 17 grids the ability to perform a full range of either medium, light or 18 sedentary activities is not present. ). 19 20 II. The ALJ Erred in the Evaluation of Plaintiff s Credibility. 21 22 Plaintiff argues that the ALJ failed to state sufficient reasons 23 for discounting Plaintiff s credibility concerning her symptoms. 24 Where, as here, the ALJ finds medically determinable impairments 25 [which] could reasonably be expected to cause the alleged symptoms 26 (A.R. 467), the ALJ may not discount the claimant s testimony 27 regarding the severity of the symptoms without making specific, 28 cogent findings, supported in the record, to justify discounting such 14 1 testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see 2 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. 3 Secretary, 846 F.2d 581, 584 (9th Cir. 1988).8 4 conclusory findings do not suffice. 5 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be 6 sufficiently specific to allow a reviewing court to conclude the ALJ 7 rejected the claimant s testimony on permissible grounds and did not 8 arbitrarily discredit the claimant s testimony ) (internal citations 9 and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 10 (9th Cir. 2001) (the ALJ must specifically identify the testimony 11 [the ALJ] finds not to be credible and must explain what evidence 12 undermines the testimony ); Smolen v. Chater, 80 F.3d at 1284 ( The 13 ALJ must state specifically which symptom testimony is not credible 14 and what facts in the record lead to that conclusion. ); see also 15 Social Security Ruling 96-7p. Generalized, See Moisa v. Barnhart, 367 F.3d 16 17 In the present case, the ALJ appeared to state five reasons for 18 finding less than fully credible Plaintiff s testimony regarding the 19 severity of her pain. 20 record assertedly did not fully corroborate Plaintiff s allegations of 21 disabling pain; (2) Plaintiff supposedly received only conservative The ALJ stated: (1) the objective medical 22 23 24 25 26 27 28 8 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 15 1 treatment for pain; (3) there assertedly was no record evidence of 2 atrophy in Plaintiff s lower limbs; (4) Plaintiff supposedly did not 3 consistently report her pain as being as severe as she alleged in her 4 testimony; and (5) Plaintiff s reported daily activities assertedly 5 were consistent with the ability to do sedentary work, and not 6 consistent with her alleged degree of pain and her testimony that she 7 stopped cooking for her family (A.R. 467-68). 8 these stated reasons are legally insufficient under the circumstances 9 of this case. As discussed below, 10 11 With regard to stated reason (1), the absence of fully 12 corroborative medical evidence cannot form the sole basis for 13 rejecting the credibility of a claimant s subjective complaints. 14 Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 15 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 16 (9th Cir. 2005) ( Burch ) ( lack of medical evidence can be a 17 factor in rejecting credibility, but cannot form the sole basis ). 18 If the ALJ s other four bases are insufficient, this first basis 19 cannot adequately support the credibility determination. See 20 21 With regard to stated reason (2), it is true that a 22 conservative course of treatment may sometimes properly discredit a 23 claimant s allegations of disabling symptoms. 24 Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied, 552 U.S. 25 1141 (2008) (treatment with over-the-counter pain medication is 26 conservative treatment sufficient to discount the claimant s 27 testimony regarding allegedly disabling pain). 28 however, the ALJ s characterization of Plaintiff s treatment as 16 See, e.g., Parra v. In the present case, 1 conservative is of dubious accuracy, given the fact that Plaintiff s 2 treatment included prescription pain medication and repeated epidural 3 injections. 4 (C.D. Cal. Apr. 23, 2012) (epidural injections suggests less 5 conservative treatment ); Christie v. Astrue, 2011 WL 4368189, at *4 6 (C.D. Cal. Sept. 16, 2011) (refusing to categorize as conservative 7 treatment including use of narcotic pain medication and epidural 8 injections).9 9 indicating that Plaintiff s symptoms appeared to be out of proportion See, e.g., Salinas v. Astrue, 2012 WL 1400362, at *4 While the ALJ cites to Dr. Ali s treatment note 10 to currently available diagnostic studies, as the Appeals Council 11 observed, Dr. Ali found that Plaintiff s symptoms were consistent with 12 an updated MRI and did necessitate surgery (A.R. 373. 516-17). 13 Ali did not find that Plaintiff required surgery based primarily on 14 Plaintiff s subjective complaints, as the ALJ mistakenly claims. 15 Compare A.R. 467 (ALJ decision) with A.R. 373 (Dr. Ali s report). Dr. 16 17 With regard to stated reason (3), there is no evidence in the 18 record to support the ALJ s apparent supposition that an absence of 19 atrophy would indicate that Plaintiff s symptoms are not as severe as 20 she alleged. 21 (9th Cir. 2010) (rejecting lack of evidence of atrophy as a reason for 22 adverse credibility determination as not based on substantial 23 evidence, where no medical evidence suggests that high inactivity 24 levels necessarily leads to muscle atrophy ); Valenzuela v. Astrue, 25 247 Fed. Appx. 927, 929 (9th Cir. 2007) (ALJ s adverse credibility See Lapierre-Gutt v. Astrue, 382 Fed. Appx. 662, 665 26 9 27 28 In November of 2008, Dr. Ali used the word conservative to characterize Plaintiff s previous treatments, but appeared to do so merely to distinguish those treatments from surgical intervention, which Dr. Ali then recommended (A.R. 373). 17 1 determination was not supported by substantial evidence where the 2 record was devoid of any medical testimony to support ALJ s finding 3 that absence of evidence of muscular atrophy indicated claimant s 4 symptoms were not as severe as alleged); but see Osenbrock v. Apfel, 5 240 F.3d 1157, 1165-66 (9th Cir. 2001) (upholding an ALJ s rejection 6 of a claimant s credibility where the ALJ made specific findings 7 including, but not limited to, a lack of atrophy). 8 9 With regard to stated reason (4), Plaintiff testified that since 10 2005 she felt pain in her lower back radiating to her right leg all 11 the time, and her pain level was between 9 and 10 on a scale of 1 to 12 10 (A.R. 48-49). 13 Plaintiff reported to Dr. Liceaga pain levels of 5-8 (A.R. 308), 9 14 (A.R. 313), 3-4 (A.R. 320), 4-6 (A.R. 321), 6 (A.R. 322), 7 (A.R. 15 328), 3 (A.R. 334), 6-8 (A.R. 335), 6 (A.R. 336, 341-42), 8-10 (A.R. 16 387, 448), 6 (A.R. 397), 10 (A.R. 425), 5 (A.R. 428), 0-1 (A.R. 431), 17 10 (A.R. 434), 8 (A.R. 437), 6 (A.R. 440), 4 (A.R. 443), and 3 (A.R. 18 451, 454). 19 receiving provided some relief from the pain and her pain levels 20 sometimes varied with her activity levels. 21 reporting Plaintiff s pain did Plaintiff claim to be pain free (id.). 22 The mere fact that Plaintiff s reports of pain varied over the course 23 of her treatment does not suggest that her pain testimony was 24 incredible. 25 (where claimant periodically advised her doctors when she was feeling 26 somewhat better, this was unlikely behavior for a person intent on 27 overstating the severity of her ailments ). 28 rejecting Plaintiff s credibility is also unpersuasive in light of Dr. Treatment notes show that throughout her treatment These notes suggest that the injections Plaintiff was In none of the records See Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1988) 18 This reasoning for 1 Ali s determination that Plaintiff s epidural injections had failed to 2 treat her pain effectively (A.R. 373). 3 4 With regard to stated reason (5), the ALJ relied on a check-box 5 form reportedly completed by Plaintiff concerning activities of daily 6 living (A.R. 468 (citing A.R. 205)). 7 that, supposedly consistent with the ability to do sedentary work, 8 Plaintiff reportedly only had some difficulty climbing a flight of 9 10 stairs, sitting, running errands, doing light housework, and Specifically, the ALJ states 10 shopping (A.R. 468). The ALJ also claims that Plaintiff s check 11 indication that she could make a meal with much difficulty was 12 inconsistent with her testimony that she stopped preparing meals for 13 [herself] and others in the family in May 2005 (A.R. 468; see A.R. 14 45). 15 with her report. 16 performed any of the activities listed on the form. 17 Further, having to struggle with much difficulty to make a meal 18 after May 2005 is not necessarily inconsistent with having ceased to 19 prepare meals for [herself] and others in the family after May 2005. However, Plaintiff s testimony was not materially inconsistent Plaintiff did not indicate how often she actually See A.R. 205. 20 21 While a claimant s level of daily activities sometimes can 22 constitute clear and convincing reasons for discounting a claimant s 23 credibility, Burch, 400 F.3d at 680-81; Rollins v. Massanari, 261 F.3d 24 853, 857 (9th Cir. 2001) (claimant s testimony regarding daily 25 domestic activities undermined the credibility of her pain-related 26 testimony), the record is inadequate to support such a conclusion in 27 this case. 28 daily activities. Plaintiff did not testify concerning the extent of her See A.R. 44-45. Certainly, the record does not 19 1 suggest that Plaintiff at any time reported that she performed 2 activities that would translate to sustained activity in a work 3 setting on a regular and continuing basis for eight hours a day, five 4 days a week. 5 residual functional capacity); see also Vertigan v. Halter, 260 F.3d 6 1044, 1049-50 (9th Cir. 2001) ( Vertigan ) ( the mere fact that a 7 plaintiff has carried on certain daily activities, such as grocery 8 shopping, driving a car, or limited walking for exercise, does not in 9 any way detract from her credibility as to her overall disability ); See Social Security Ruling 96-8p (defining scope of 10 Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 1984) ( Gallant ) 11 (fact that claimant could cook for himself and family members as well 12 as wash dishes did not preclude a finding that claimant was disabled 13 due to constant back and leg pain).10 14 15 The ALJ cites to additional evidence in the record of Plaintiff s 16 daily activities as assertedly inconsistent with disability and 17 supposedly showing that she does have the ability to perform work if 18 10 19 20 21 22 23 24 25 26 27 28 In Burch, 400 F.3d at 680, the Ninth Circuit upheld an ALJ s rejection of a claimant s credibility in partial reliance on the claimant s daily activities of cooking, cleaning, shopping, interacting with others and managing her own finances and those of her nephew. In doing so, the Ninth Circuit did not purport to depart from the general rule that an ALJ may consider daily living activities in the credibility analysis only where a claimant engages in numerous daily activities involving skills that could be transferred to the workplace. Id. at 681. Undeniably, however, it is difficult to reconcile the result in Burch (and the result in Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008)) from the results in cases like Vertigan and Gallant. Certainly, the relevance of a claimant carrying on daily activities should be evaluated on a case-bycase basis. Bloch on Social Security § 3.37 (Jan. 2005). In the present case, the record fails to show that Plaintiff s purported activities are inconsistent with her allegedly disabling pain. 20 1 motivated (A.R. 468). On one occasion, Plaintiff reported that she 2 cleaned her kitchen floor and was paying for it with intolerable 3 pain (A.R. 387).11 4 overextended herself in assisting her husband in repairing their 5 home deck (A.R. 397). 6 Plaintiff could (or believed she could) perform work in a work setting 7 on a regular and continuing basis for eight hours a day, five days a 8 week. On another occasion, Plaintiff reported that she These isolated incidents do not suggest that See Social Security Ruling 96-8p. 9 10 III. Remand is Appropriate. 11 12 Plaintiff requests that the Court remand the case for further 13 proceedings or exercise its discretion to credit Plaintiff s testimony 14 as true. 15 mandatory. 16 ( Connett ) (remand is an option where the ALJ fails to state 17 sufficient reasons for rejecting a claimant s excess symptom 18 testimony); but see Lingenfelter v. Astrue, 504 F.3d 1028, 1041 n.12 19 (9th Cir. 2007) (appearing to suggest that remand is not an option 20 where the ALJ failed to state sufficient reasons for rejecting a 21 claimant s excess symptom testimony); Orn v. Astrue, 495 F.3d 625, 640 22 (9th Cir. 2007) (appearing, confusingly, to cite Connett for the 23 proposition that [w]hen an ALJ s reasons for rejecting the claimant s 24 testimony are legally insufficient and it is clear from the record 25 that the ALJ would be required to determine the claimant disabled if The credit as true rule Plaintiff seeks to invoke is not See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) 26 27 28 11 The Appeals Council found the fact that Plaintiff had cleaned her floor was not sufficient to discredit Plaintiff s credibility (A.R. 517). 21 1 he had credited the claimant s testimony, we remand for a calculation 2 of benefits ) (quotations omitted); see also Vasquez v. Astrue, 572 3 F.3d 586, 599-601 (9th Cir. 2009) (court need not credit as true 4 improperly rejected claimant testimony where there are outstanding 5 issues that must be resolved before a proper disability determination 6 can be made). 7 proper disability determination can be made. 8 apply the non-mandatory credit as true rule under the circumstances 9 of this case. The record requires additional development before a The Court declines to 10 11 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 12 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) also does 13 not compel a reversal directing the payment of benefits. 14 the Ninth Circuit stated that improperly rejected medical opinion 15 evidence should be credited and an immediate award of benefits 16 directed where (1) the ALJ has failed to provide legally sufficient 17 reasons for rejecting such evidence, (2) there are no outstanding 18 issues that must be resolved before a determination of disability can 19 be made, and (3) it is clear from the record that the ALJ would be 20 required to find the claimant disabled were such evidence credited. 21 Harman, 211 F.3d at 1178 (citations and quotations omitted). 22 Assuming, arguendo, the Harman holding survives the Supreme Court s 23 /// 24 decision in INS v. Ventura, 537 U.S. 12, 16 (2002),12 the Harman 25 holding does not direct reversal of the present case. In Harman, Here, the 26 27 28 12 The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Luna V. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010); Vasquez v. Astrue, 572 F.3d at 597. 22 1 Administration must recontact Plaintiff s treating physicians 2 concerning outstanding issues that must be resolved before a 3 determination of disability can be made. 4 from the record that the ALJ would be required to find Plaintiff 5 disabled for the entire claimed period of disability were the opinions 6 of Plaintiff s treating physicians credited. 7 F.3d 1032, 1035 (9th Cir. 2010) (remand appropriate where the 8 improperly rejected treating physician opinion failed to identify a 9 disability onset date). Further, it is not clear See Luna v. Astrue, 623 10 11 CONCLUSION 12 13 For all of the foregoing reasons,13 Plaintiff s and Defendant s 14 motions for summary judgment are denied and this matter is remanded 15 for further administrative action consistent with this Opinion. 16 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 DATED: June 4, 2013. 20 ______________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 13 28 The Court need not and does not reach any of the other issues raised by Plaintiff. 23

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