Ramon Moreno v. Michael J. Astrue, No. 5:2008cv00657 - Document 17 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is granted; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 RAMON MORENO, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 08-0657-RC OPINION AND ORDER 17 18 Plaintiff Ramon Moreno filed a complaint on May 22, 2008, seeking 19 review of the Commissioner s decision denying his application for 20 disability benefits, and on October 20, 2008, the Commissioner 21 answered the complaint. 22 December 9, 2008. The parties filed a joint stipulation on 23 24 BACKGROUND 25 I 26 On October 4, 2005 (protective filing date), plaintiff applied 27 for disability benefits under the Supplemental Security Income program 28 of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an inability to 1 work since December 7, 2004. 2 13, 66-77. 3 January 6, 2006, and was denied again on February 7, 2006, following 4 reconsideration. 5 administrative hearing, which was held before Administrative Law Judge 6 Mason D. Harrell, Jr. ( the ALJ ) on April 24, 2007. 7 311. 8 not disabled. 9 the Appeals Council, which remanded the matter to the ALJ for further 10 Certified Administrative Record ( A.R. ) The plaintiff s application was initially denied on A.R. 37-41, 44-50. The plaintiff then requested an A.R. 52, 288- On May 9, 2007, the ALJ issued a decision finding plaintiff is proceedings. A.R. 201-12. The plaintiff appealed the decision to A.R. 213-19. 11 On December 5, 2007, following remand, the ALJ held a new 12 13 administrative hearing, A.R. 269-87, and on January 11, 2008, the ALJ 14 issued a decision again finding plaintiff is not disabled. 15 24. 16 which denied review on April 25, 2008. A.R. 10- The plaintiff appealed this decision to the Appeals Council, A.R. 6-9. 17 18 II 19 The plaintiff, who was born on July 31, 1959, is currently 50 20 years old. A.R. 67, 69, 73. He has an eleventh-grade education, and 21 has previously worked as a truck driver, delivery driver, security 22 supervisor and security guard. A.R. 82-89, 294. 23 24 Since October 31, 2004, plaintiff has received medical treatment 25 at Loma Linda University Medical Center ( Loma Linda ), where he has 26 been diagnosed with cervical and lumbar degenerative disc disease, 27 asthma, bronchitis, diabetes mellitus and hypertension, among other 28 conditions. A.R. 111-49, 176-200, 235-64. 2 On December 15, 2004, 1 plaintiff had cervical and lumbar spine x-rays, which revealed mild 2 degenerative disc disease at C5-C6, with a suggestion of mild neural 3 foraminal narrowing on the right and mild-to-moderate disc space 4 narrowing, with endplate sclerosis; mild anterior hypertrophic 5 spurring at L4-L5 and L5-S1, worse at the lumbosacral junction; and 6 mild associated sclerosis of the facet joints at L4-L5 and L5-S1. 7 A.R. 108-09, 147-48. 8 spine MRI, which revealed: mild right lateral recess stenosis1 9 secondary to a 4-mm. right (greater than left) posterior disc bulge at On February 3, 2005, plaintiff had a lumbar 10 L5-S1, with potential for impingement on the traversing right S1 11 nerve; mild-to-moderate right L5-S1 foraminal encroachment, with 12 potential for impingement on the exiting right L5 nerve; 2-mm. 13 posterior disc bulges at L2-L3 and L3-L4, without evidence of neural 14 impingement; and mild-to-moderate degenerative disc disease at L4-L5, 15 with a 2.5-mm. posterior disc bulge without evidence of neural 16 impingement. 17 electromyographic studies of both arms, which demonstrated bilateral 18 moderate median neuropathy2 at the wrist (carpal tunnel syndrome), 19 slightly worse on the more symptomatic right side. 20 // A.R. 105-06. On April 19, 2006, plaintiff underwent A.R. 262-63. 21 22 23 24 25 26 27 28 1 Spinal stenosis is narrowing of the vertebral canal, nerve root canals, or intervertebral foramina of the lumbar spine caused by encroachment of the bone upon the space; symptoms are caused by compression of the cauda equina and include pain, paresthesias, and neurogenic claudication. Dorland s Illustrated Medical Dictionary, 1698 (29th ed. 2000). 2 Neuropathy is a functional disturbance or pathological change in the peripheral nervous system, sometimes limited to noninflammatory lesions as opposed to those of neuritis; the etiology may be known or unknown. Dorland s Illustrated Medical Dictionary at 1212. 3 1 On May 2, 2006, a Loma Linda physician, Dr. Danielle Sawyer- 2 Macknet, noting plaintiff has stenosis at L5-S1, as documented by an 3 MRI, and a history of a work-related head injury, which could account 4 for his memory issues, A.R. 171, opined plaintiff: is able to 5 occasionally lift and carry less than 10 pounds; can sit, stand and 6 walk for less than 2 hours in an 8-hour day; can sit or stand for 5 7 minutes before changing position; needs to be able to shift positions 8 at will from sitting to standing/walking, and will need to lie down 3- 9 4 times during a work shift; can occasionally twist, stoop, crouch and 10 climb stairs, and never climb ladders; and he might have problems 11 fingering and feeling due to carpal tunnel syndrome and diabetic 12 neuropathy. 13 moderately limited in his ability to understand and remember very 14 short and simple instructions; is slightly limited in his ability to 15 remember locations and work-like procedures, maintain attention and 16 concentration for extended periods, perform activities within a 17 schedule, maintain regular attendance, be punctual within customary 18 tolerances, sustain an ordinary routine without special supervision, 19 and work in coordination with or proximity to others without being 20 distracted by them; and is otherwise not significantly limited. 21 265-66. 22 or more work days per month due to his condition. A.R. 170-72. Dr. Sawyer-Macknet also opined plaintiff is A.R. Finally, Dr. Sawyer-Macknet opined plaintiff would miss three A.R. 172, 266. 23 24 On August 29, 2006, another Loma Linda physician, Dr. David Ham, 25 opined plaintiff: is able to occasionally lift and carry less than 10 26 pounds; can stand and walk for about 2 hours and sit for about 5 hours 27 in an 8-hour day; can sit for 30 minutes and stand for 10 minutes 28 before changing position; must walk every 30 minutes for 0-5 minutes; 4 1 needs to be able to shift positions at will from sitting to 2 standing/walking; can occasionally crouch, and never twist, stoop, or 3 climb stairs or ladders; should avoid all exposure to extreme cold, 4 heat, fumes, odors, dusts, gases, poor ventilation, etc., and hazards; 5 and might have problems reaching, handling, fingering, feeling, and 6 pushing/pulling. 7 moderately limited in his ability to sustain an ordinary work 8 routine without supervision; slightly limited in his ability to 9 remember locations and work-like procedures and work in coordination 10 with or in proximity to others without being distracted by them; and 11 is otherwise not significantly limited. 12 Ham opined plaintiff would miss three or more work days per month due 13 to his condition. A.R. 173-75. Dr. Ham also opined plaintiff is A.R. 267-68. Finally, Dr. A.R. 175, 268. 14 15 On December 5, 2005, Thomas R. Dorsey, M.D., an orthopedic 16 surgeon, examined plaintiff, found there was no evidence plaintiff had 17 radiculopathy,3 and opined plaintiff can lift and/or carry up to 20 18 pounds occasionally and 10 pounds frequently, occasionally bend or 19 stoop, and stand and walk for 6 hours in an 8-hour day. A.R. 150-55. 20 21 Medical expert Samuel Landau, M.D., testified at the 2007 22 administrative hearing, opining that plaintiff has obesity, low back 23 pain, neck and low back degenerative disc disease, asthmatic 24 bronchitis, type II diabetes mellitus, and carpal tunnel syndrome in 25 both wrists, none of which meet or in combination equal a listed 26 impairment. A.R. 272-78. Dr. Landau further opined plaintiff: should 27 3 28 Radiculopathy is disease of the nerve roots. Illustrated Medical Dictionary at 1511. 5 Dorland s 1 be limited to lifting and/or carrying up to 10 pounds frequently and 2 20 pounds occasionally; can occasionally bend and stoop; can perform 3 occasional neck motions, but should avoid extremes of motions; should 4 hold his head in a comfortable position most of the time; can sit for 5 six hours with normal breaks every two hours, and stand and/or walk 6 for two hours out of 8 hours; should be able to use a cane as needed 7 for walking; can climb stairs, but not climb ladders, work at heights, 8 or balance; can maintain a fixed step position for 15-30 minutes and 9 then climb occasionally; needs an air conditioned work environment 10 free from excessive inhaled pollutants; and cannot do forceful 11 gripping, grasping and twisting or continuous fine or gross 12 manipulation, but can do frequent fine or gross manipulation. 13 275-76, 285. A.R. 14 15 DISCUSSION 16 III 17 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 18 review the decision denying plaintiff disability benefits to determine 19 if his findings are supported by substantial evidence and whether the 20 Commissioner used the proper legal standards in reaching his decision. 21 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 22 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 23 24 The claimant is disabled for the purpose of receiving benefits 25 under the Act if he is unable to engage in any substantial gainful 26 activity due to an impairment which has lasted, or is expected to 27 last, for a continuous period of at least twelve months. 28 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 6 42 U.S.C. § The claimant bears the 1 burden of establishing a prima facie case of disability. Roberts v. 2 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 3 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 4 5 The Commissioner has promulgated regulations establishing a five- 6 step sequential evaluation process for the ALJ to follow in a 7 disability case. 8 must determine whether the claimant is currently engaged in 9 substantial gainful activity. 20 C.F.R. § 416.920. In the First Step, the ALJ 20 C.F.R. § 416.920(b). If not, in the 10 Second Step, the ALJ must determine whether the claimant has a severe 11 impairment or combination of impairments significantly limiting him 12 from performing basic work activities. 13 so, in the Third Step, the ALJ must determine whether the claimant has 14 an impairment or combination of impairments that meets or equals the 15 requirements of the Listing of Impairments ( Listing ), 20 C.F.R. § 16 404, Subpart P, App. 1. 17 Fourth Step, the ALJ must determine whether the claimant has 18 sufficient residual functional capacity despite the impairment or 19 various limitations to perform his past work. 20 If not, in Step Five, the burden shifts to the Commissioner to show 21 the claimant can perform other work that exists in significant numbers 22 in the national economy.4 23 // 20 C.F.R. § 416.920(c). 20 C.F.R. § 416.920(d). If If not, in the 20 C.F.R. § 416.920(f). 20 C.F.R. § 416.920(g). 24 25 26 27 28 4 Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments. Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam); see also 20 C.F.R. § 416.920a. 7 Applying the five-step sequential evaluation process, the ALJ 1 2 found plaintiff has not engaged in substantial gainful activity since 3 his application date of October 4, 2005. 4 found plaintiff has the severe impairments of: obesity with low back 5 pain; degenerative disc disease of the neck and low back; asthmatic 6 bronchitis; diabetes mellitus, type-2; and carpal tunnel syndrome; 7 however, plaintiff does not have a severe mental impairment. 8 Two). 9 impairments that meets or equals a Listing. (Step One). The ALJ then (Step The ALJ also found plaintiff does not have a combination of (Step Three). The ALJ 10 next determined plaintiff cannot perform his past relevant work. 11 (Step Four). 12 significant number of jobs in the national economy; therefore, he is 13 not disabled. Finally, the ALJ concluded plaintiff can perform a (Step Five). 14 IV 15 16 The Step Two inquiry is a de minimis screening device to dispose 17 of groundless claims. Smolen, 80 F.3d at 1290; Webb v. Barnhart, 18 433 F.3d 683, 687 (9th Cir. 2005). 19 at Step Two of the sequential evaluation process increases the 20 efficiency and reliability of the evaluation process by identifying at 21 an early stage those claimants whose medical impairments are so slight 22 that it is unlikely they would be found to be disabled even if their 23 age, education, and experience were taken into account. 24 Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 25 (1987). 26 requirement violates the Act by denying benefits to claimants who meet 27 the statutory definition of disabled. 28 949 (9th Cir. 1994). Including a severity requirement Bowen v. However, an overly stringent application of the severity 8 Corrao v. Shalala, 20 F.3d 943, 1 A severe impairment exists when there is more than a minimal 2 effect on an individual s ability to do basic work activities. Webb, 3 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 4 2001); see also 20 C.F.R. § 416.921(a) ( An impairment or combination 5 of impairments is not severe if it does not significantly limit [a 6 person s] physical or mental ability to do basic work activities. ). 7 Basic work activities are the abilities and aptitudes necessary to do 8 most jobs, including physical functions such as walking, standing, 9 sitting, lifting, pushing, pulling, reaching, carrying or handling, as 10 well as the capacity for seeing, hearing and speaking, understanding, 11 carrying out, and remembering simple instructions, use of judgment, 12 responding appropriately to supervision, co-workers and usual work 13 situations, and dealing with changes in a routine work setting. 14 20 C.F.R. § 416.921(b); Webb, 433 F.3d at 686. 15 16 In Step Two, the ALJ found plaintiff does not have a severe 17 mental impairment. A.R. 16. However, plaintiff contends this finding 18 is not supported by substantial evidence because the ALJ failed to 19 properly consider the opinions of his treating physician, Dr. Sawyer- 20 Macknet. There is no merit to this claim. 21 22 Since the medical opinions of a treating physician is entitled to 23 special weight because a treating physician is employed to cure and 24 has a greater opportunity to know and observe the patient as an 25 individual[,] Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); 26 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 27 1999), the ALJ must provide clear and convincing reasons for 28 rejecting the uncontroverted opinion of a treating physician, Ryan v. 9 1 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick v. 2 Chater, 157 F.3d 715, 725 (9th Cir. 1998), and [e]ven if [a] treating 3 doctor s opinion is contradicted by another doctor, the ALJ may not 4 reject this opinion without providing specific and legitimate 5 reasons supported by substantial evidence in the record. 6 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 7 2008). Reddick, 8 9 With respect to plaintiff s mental health, Dr. Sawyer-Macknet 10 opined plaintiff: is moderately limited in his ability to understand 11 and remember very short and simple instructions; is slightly limited 12 in his ability to remember locations and work-like procedures, 13 maintain attention and concentration for extended periods, perform 14 activities within a schedule, maintain regular attendance, and be 15 punctual within customary tolerances, sustain an ordinary routine 16 without special supervision, and work in coordination with or 17 proximity to others without being distracted by them; is otherwise not 18 significantly limited; and would miss three or more work days per 19 month due to his condition. 20 Sawyer-Macknet s opinions because they were inconsistent with the 21 medical evidence as a whole and . . . unsupported by medically 22 acceptable clinical or diagnostic findings. 23 reasoning is well-founded and supported by substantial evidence in the 24 record. 25 A.R. 257, 304, he testified at the administrative hearing that Elavil 26 was prescribed to him for pain.5 A.R. 265-66. The ALJ rejected Dr. A.R. 22. The ALJ s Although plaintiff has been prescribed Elavil, see, e.g., A.R. 279. Nothing else in the 27 5 28 Among other uses, Elavil is used to control chronic pain [and] to prevent migraine headaches. . . . The PDR Family Guide 10 1 record indicates plaintiff has been diagnosed with a mental 2 impairment. 3 opinions as conclusory, brief, and unsupported by the record as a 4 whole, or by objective medical findings. 5 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citation 6 omitted); Bray v. Astrue, 554 F.3d 1219, 1228 (9th Cir. 2009). Thus, the ALJ properly discredited Dr. Sawyer-Macknet s Batson v. Comm r of the 7 8 The ALJ also rejected Dr. Sawyer-Macknet s opinions about 9 plaintiff s mental health because they were on a check-the-box form 10 that does not provide detailed analysis of [plaintiff s] condition 11 and his diagnosis. . . . 12 for the ALJ to reject Dr. Sawyer-Macknet s opinions.6 13 Batson, 359 F.3d at 1195 (ALJ properly rejected treating physicians 14 opinions in part because they were in checklist form with no A.R. 22. This too is a proper rationale See, e.g., 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Prescription Drugs, 240 (8th ed. 2000). 6 The ALJ, however, improperly rejected Dr. SawyerMacknet s opinions about plaintiff s mental health because there is no evidence to show Dr. Sawyer-Macknet has any particular qualifications, training, or expertise relative to psychological or psychiatric impairments enabling her to make such an assessment. A.R. 22. Under the Act, any physician is qualified to give a medical opinion as to [a claimant s] mental state . . . even though . . . not a psychiatrist. Sprague, 812 F.2d at 1232; see also Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) ( Dr. Kho provided treatment for the claimant s psychiatric impairment, including the prescription of psychotropic medication. His opinion constitutes competent psychiatric evidence and may not be discredited on the ground that he is not a board certified psychiatrist. ). Nevertheless, given the other well-supported reasons for the ALJ rejecting Dr. Sawyer-Macknet s opinions about plaintiff s mental health, as discussed herein, any error in this regard was harmless, Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005), and the ALJ was not required to further develop the record regarding Dr. SawyerMacknet s credentials, as plaintiff contends. 11 1 supporting objective evidence); Crane v. Shalala, 76 F.3d 251, 253 2 (9th Cir. 1996) (ALJ properly rejected psychological evaluations 3 because they were check-off reports that did not contain any 4 explanation of the bases of their conclusions. ). 5 provided specific and legitimate reasons based on substantial 6 evidence for rejecting Dr. Sawyer-Macknet s opinions about 7 plaintiff s mental health. Thus, the ALJ Tommasetti, 533 F.3d at 1037. 8 9 10 V A claimant s residual functional capacity ( RFC ) is what he can 11 still do despite his physical, mental, nonexertional, and other 12 limitations. 13 1152, 1155 n.5 (9th Cir. 1989). 14 RFC to perform limited light work,7 as follows: Mayes, 276 F.3d at 460; Cooper v. Sullivan, 880 F.2d Here, the ALJ found plaintiff has the 15 16 [W]ithin an eight hour workday he can stand and/or walk for 17 two hours, sit for six hours with normal breaks such as 18 every 2 hours, and use a cane as needed. 19 carry 10 lbs. frequently and 20 lbs. occasionally, and 20 occasionally stoop and bend. 21 cannot climb ladders, work at heights, or balance. 22 environment should be air-conditioned and free of excessive He can lift and/or He can climb stairs, but he His work 23 7 24 25 26 27 28 Under Social Security regulations, [l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 416.967(b). 12 1 inhaled pollutants, such as an office or th[e] [ALJ s] 2 hearing room. 3 avoid extremes of motion. 4 comfortable position most of the time. 5 fixed head position for 15-30 minutes at a time[] 6 occasionally and work without forceful gripping, grasping, 7 or twisting and no continuous fine and gross manipulations, 8 but can do so frequently. 9 tasks due to medications. He can do occasional neck motion but should His head should be held in a He can maintain a He can perform simple repetitive 10 11 A.R. 17. However, plaintiff contends the RFC determination, and 12 resultant Step 5 denial of benefits, are not supported by substantial 13 evidence because, among other reasons, the ALJ improperly found he was 14 not a credible witness. The plaintiff is correct. 15 16 The plaintiff testified at the administrative hearing that he has 17 headaches, neck, lower back and leg pain, his legs give out, and he 18 has carpal tunnel syndrome. 19 he can only lie around the house because of his pain, his pain makes 20 it difficult for him to concentrate, and he gets disoriented, tired 21 and forgetful when he takes his medication. 22 295, 298, 303-04. 23 plaintiff stated he naps, sometimes sleeping four hours. 24 295-96. 25 tunnel syndrome, he cannot hold heavy items or grab things too hard 26 because his hands start hurting and go numb, and he sometimes drops 27 cereal bowls because of the numbness. 28 was prescribed a cane to help him walk because his legs give out, but A.R. 280-82, 292, 295-96, 298. He stated A.R. 279-81, 283, 292, After he takes his medication in the morning, A.R. 283, Further, plaintiff testified that, as a result of his carpal 13 A.R. 282, 296. The plaintiff 1 he does not do much walking because of his pain. A.R. 280, 296, 306. 2 3 Once a claimant has presented objective evidence he suffers from 4 an impairment that could cause pain or other nonexertional 5 limitations,8 the ALJ must provide specific, cogent reasons if he 6 finds the claimant s subjective complaints are not credible. 7 v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); 8 Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). 9 the medical evidence establishes an objective basis for some degree of 10 pain and related symptoms, and no evidence affirmatively suggests the 11 claimant is malingering, the ALJ s reasons for rejecting the 12 claimant s testimony must be clear and convincing. 13 at 599; Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1160 14 (9th Cir. 2008). Greger Furthermore, when Morgan, 169 F.3d 15 16 Here, the ALJ found plaintiff s testimony was not credible for 17 several reasons: (1) the claimant makes excessive exaggeration and 18 inconsistent statements ; (2) the claimant s inconsistent [testimony] 19 with his prior testimony about medications ; (3) the claimant is 20 able to work since he has look[ed] for work ; (4) the claimant s 21 failure to follow his treatment plan relative to the treatment of his 22 diabetes mellitus and obesity ; and (5) the [o]bjective medical 23 evidence does not fully support the claimant s complaints. 24 21. A.R. 19- 25 26 27 28 8 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 14 The ALJ found plaintiff was not entirely credible due to 1 2 excessive exaggeration and inconsistent statements when he was asked 3 about his response to a questionnaire where he stated he changes 4 sitting position after sitting a while. 5 the hearing he was observed changing position for the first time after 6 45 minutes had passed, evidencing an inconsistency between his 7 testimony and his behavior. 8 claimant does not exhibit physical manifestations of prolonged pain at 9 the hearing provides little, if any, support for the ALJ s ultimate 10 conclusion that the claimant is not disabled or that his allegations 11 of constant pain are not credible. 12 753 F.2d 1450, 1455 (9th Cir. 1984); see also Perminter v. Heckler, 13 765 F.2d 870, 872 (9th Cir. 1985) (per curiam) (condemning ALJ s 14 personal observations as sit and squirm jurisprudence and noting 15 inapplicability where contrary evidence). A.R. 20. However, during the course of Yet, [t]he fact that a Gallant v. Heckler, 16 17 Additionally, the ALJ found plaintiff was not credible based on: 18 19 . . . the fact that during the April 24, 2007 hearing, the 20 [plaintiff] said he was testifying slowly because his 21 medications make him confused. 22 inconsistent with his prior testimony that he had taken less 23 medication that morning so that he would be alert. 24 his testimony on April 24, 2007, it also appears that the 25 [plaintiff] may be adjusting to his medications now and may 26 not be so sleepy in the future after he has adequately 27 adjusted. 28 // 15 This statement is Based on 1 A.R. 20. At the administrative hearing, plaintiff testified he only 2 took a little bit of his medication that morning, and he would take 3 the rest of the medication after the hearing, because the medication 4 makes him disoriented and exhausted and he cannot concentrate. 5 292, 295-96, 298, 303-04. 6 stating you have to forgive me, Your Honor, because the medication, 7 it makes me a little disoriented, so I ve got to try to get my 8 thoughts together when you ask me questions, so I apologize if I go 9 slow or kind of look disoriented to you. A.R. Later, plaintiff apologized to the ALJ, A.R. 306-07. There is 10 simply no inconsistency between the plaintiff s two statements; 11 therefore, this supposed inconsistency is not a proper reason for 12 finding plaintiff was not credible. 13 that plaintiff may be adjusting to his medications is rank 14 speculation and is improper. 15 his own judgment for competent medical opinion . . . [,] Balsamo v. 16 Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citations omitted), and he 17 must not succumb to the temptation to play doctor and make [his] own 18 independent medical findings. 19 Cir. 1996). Moreover, the ALJ s conclusion An ALJ cannot arbitrarily substitute Rohan v. Chater, 98 F.3d 966, 970 (7th 20 21 22 Further, the ALJ found plaintiff s credibility was undermined by his: 23 24 failure to follow his treatment plan relative to the 25 treatment of his diabetes mellitus and obesity. 26 records show his treating physician instructed him to avoid 27 sugars and starches due to his diabetes mellitus (Exhibit 28 10F, p. 22). Medical Furthermore, he testified his doctor told him 16 1 to lose weight relative to his back condition and diabetes. 2 However, the claimant s medical records . . . do not reflect 3 an adherence to a diet free of sugar and starches, but 4 rather, his escalating weight gain since his alleged onset 5 date. 6 By December 2005, he weighed 226 lbs. with a body mass index 7 score of 38. 8 claimant testified that he recently went on a diet, and 9 touted that he has lost two pounds, a minuscule amount when Specifically, in January 2005, he weighed 218 lbs. By November 2006 he weighed 237 lbs. The compared to the amount of weight he has gained. 10 11 12 A.R. 21 (some citations omitted). However, this determination also is 13 not supported by substantial evidence, or even the exhibit the ALJ 14 cites. 15 appears to be the first date plaintiff was advised to avoid sugars and 16 starches due to his diabetes. 17 (3/7/07). 18 support the determination that plaintiff ignored his doctor s advice 19 of November 8, 2006, is not supported by substantial evidence. 20 Rather, plaintiff s weight on November 8, 2006, was the reason 21 plaintiff s doctor advised him to avoid sugars and starches, and the 22 record demonstrates that by the administrative hearing five months 23 later, plaintiff had lost approximately nine pounds. 24 the ALJ s reason for disbelieving plaintiff is not supported by the 25 record, once again, it is not a clear and convincing reason for 26 finding plaintiff was not credible. 27 // 28 // That exhibit is dated November 8, 2006, A.R. 197, and it See also A.R. 178 (3/7/07), 240 Thus, the ALJ s reliance on plaintiff s weight gain to 17 A.R. 261. Since The ALJ also found plaintiff was not credible because he: 1 2 3 . . . initially testified that he did not look for work. 4 However, upon being advised that the unemployment benefits 5 compensation system requires that he look for work, he then 6 changed his testimony and admitted that his wife took him 7 around looking for work. 8 he averred that he is able to work. Such an admission is evidence that 9 10 A.R. 20-21. The record, however, does not clearly show whether 11 plaintiff sought unemployment benefits after the time of his alleged 12 disability, see A.R. 296-98, and the ALJ did not cite anything in the 13 record to show plaintiff represented he was capable of performing 14 full-time work after his disability onset date. 15 is not a clear and convincing reason for finding plaintiff was not 16 credible. 17 unemployment benefits can undermine a claimant s alleged inability to 18 work fulltime, the record here does not establish whether [the 19 claimant] held himself out as available for full-time or part-time 20 work. 21 allegations. 22 not supported by substantial evidence. (citations omitted)). Therefore, this too See Carmickle, 533 F.3d at 1161-62 ( [W]hile receipt of Only the former is inconsistent with his disability Thus, such basis for the ALJ s credibility finding is 23 24 Finally, it is well-established law that the ALJ may not 25 discredit a claimant s testimony solely because the degree of pain 26 alleged by the claimant is not supported by objective medical 27 evidence. 28 banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en 18 Thus, 1 this is not a clear and convincing reason for rejecting plaintiff s 2 credibility. 3 see also Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) ( It is 4 improper as a matter of law to discredit . . . testimony solely on the 5 ground that it is not fully corroborated by objective medical 6 findings. ). Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001); 7 8 9 For all these reasons, the ALJ provided nothing but unsatisfactory reasons for discounting [plaintiff s] credibility, 10 Reddick, 157 F.3d at 724; thus, substantial evidence does not support 11 the [ALJ s RFC] assessment. 12 1040 (9th Cir. 2007). 13 ALJ s step-five determination, since it was based on this erroneous 14 RFC assessment. Lingenfelter v. Astrue, 504 F.3d 1028, Nor does substantial evidence support the Id. at 1041. 15 16 VI 17 When the Commissioner s decision is not supported by substantial 18 evidence, the Court has authority to affirm, modify, or reverse the 19 Commissioner s decision with or without remanding the cause for 20 rehearing. 21 1076 (9th Cir. 2002). 22 is appropriate if enhancement of the record would be useful. 23 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman v. Apfel, 24 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). 25 Here, since there are insufficient findings as to whether 26 [plaintiff s] testimony should be credited as true, remand is the 27 // 28 // 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, Remand for further administrative proceedings 19 Benecke 1 appropriate remedy. 2 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003).9 3 4 ORDER 5 IT IS ORDERED that: (1) plaintiff s request for relief is 6 granted; and (2) the Commissioner s decision is reversed, and the 7 action is remanded to the Social Security Administration for further 8 proceedings consistent with this Opinion and Order, pursuant to 9 sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered 10 accordingly. 11 12 DATE: August 26, 2009 13 14 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\08-0657.mdo 8/26/09 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Having reached this conclusion, it is unnecessary for the Court to address the other claims plaintiff raises, none of which warrant any further relief than granted herein. 20

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