Jaynie M Shehan v. Michael J Astrue, No. 5:2008cv01302 - Document 18 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. (See document for details). IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this action is remanded for further proceedings consistent with this Memorandum Opinion. (wr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JAYNIE M. SHEHAN, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 08-01302 (MLG) MEMORANDUM OPINION AND ORDER 19 Plaintiff Jaynie M. Shehan ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying her applications for disability 21 insurance benefits ( DIB ) and supplemental security income benefits 22 ( SSI ) pursuant to Titles II and XVI of the Social Security Act. For 23 the reasons stated below, the Commissioner s decision is reversed, and 24 this action is remanded for further proceedings. 25 26 I. Factual and Procedural Background 27 Plaintiff was born on August 5, 1949. (Administrative Record ( AR ) 28 at 11, 91). She has a high school education and relevant work experience 1 as a receptionist. (AR at 40). 2 Plaintiff filed applications for DIB and SSI on March 15, 2006, 3 alleging that she had been disabled since August 4, 2005, due to 4 osteoarthritis and a spinal disc narrowing. (AR at 39, 87). The Social 5 Security Administration denied Plaintiff s applications at the initial 6 and reconsideration levels. (AR at 34, 42-46, 48-52). 7 A de novo hearing was held before Administrative Law Judge Mason D. 8 Harrell, Jr. (the ALJ ) on November 15, 2007. (AR at 6-22). Plaintiff 9 testified in her own behalf and was represented by counsel. Id. A 10 vocational expert also testified at the hearing. (AR at 24-25). On 11 December 12, 2007, the ALJ issued a decision denying Plaintiff s 12 applications for DIB and SSI. (AR at 34-41). The ALJ found that 13 Plaintiff: (1) has not engaged in substantial gainful activity since her 14 alleged 15 questionably severe impairment of the musculoskeletal system with 16 residual low back pain (step 2); (3) does not have any impairments that 17 meet or equal a Listed impairment (step 3); (4) has the residual 18 functional capacity ( RFC ) to perform light work1 and is able to perform 19 her past relevant work as a receptionist. (AR at 36-40). On August 12, 20 2008, the Appeals Council denied review. (AR at 1-3). onset date of disability (step 1); (2) suffers from a 21 Plaintiff commenced this action for judicial review on September 22 30, 2008. On July, 20 2009, the parties filed a Joint Stipulation of 23 disputed issues. The issues presented are whether the ALJ: (1) properly 24 25 1 26 27 28 Specifically, the ALJ found that Plaintiff is able to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours in an eight-hour workday, sit six hours with a sit/stand option, and occasionally bend, stoop and crouch. (AR at 37). Plaintiff can lie down during lunch breaks and should sit on a hard chair. (AR at 37). 2 1 considered the medical evidence; (2) properly considered Plaintiff s 2 subjective complaints and credibility; and (3) properly developed the 3 vocational evidence. (Joint Stipulation at 4-19). Plaintiff seeks remand 4 for a new administrative hearing and further development of the record. 5 (Joint Stipulation at 19). The Commissioner requests that the ALJ s 6 decision be affirmed. (Joint Stipulation at 20). The Joint Stipulation 7 has been taken under submission without oral argument. 8 9 II. Standard of Review Under 10 42 U.S.C. § 405(g), a district court may review the 11 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 12 findings and decision should be upheld if they are free from legal error 13 and are supported by substantial evidence based on the record as a 14 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 15 (1971); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). 16 Substantial evidence means such evidence as a reasonable person might 17 accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; 18 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). It is more than a 19 scintilla, but less than a preponderance. Reddick, 157 F.3d at 720. To 20 determine whether substantial evidence supports a finding, the reviewing 21 court must review the administrative record as a whole, weighing both 22 the evidence that supports and the evidence that detracts from the 23 Commissioner s conclusion. Id. If the evidence can reasonably support 24 either affirming or reversing, the reviewing court may not substitute 25 its judgment for that of the Commissioner. Id. at 720-721. 26 \\ 27 \\ 28 \\ 3 1 III. Discussion 2 A. 3 Plaintiff contends that the ALJ failed to give proper consideration 4 to her testimony concerning the nature and extent of her pain and 5 functional limitations. 6 Plaintiff s Subjective Pain Testimony The determination of credibility and the resolution of conflicts in 7 the testimony 8 Commissioner. Morgan v. Commissioner of Social Security, 169 F.3d 595, 9 599 (9th Cir. 1999); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). 10 In general, an ALJ s assessment of credibility should be given great 11 weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The ALJ may 12 employ ordinary techniques of credibility evaluation and may take into 13 account prior inconsistent statements or a lack of candor by the 14 witness. Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir. 1989). However, 15 once 16 impairment, the ALJ may not discredit the claimant s testimony regarding 17 subjective pain and other symptoms merely because the symptoms, as 18 opposed 19 evidence. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 20 2007); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Light v. 21 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). [T]he ALJ can 22 reject the claimant s testimony about the severity of her symptoms only 23 by offering specific, clear and convincing reasons for doing so. 24 Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 25 1281 (9th Cir. 1996). a are claimant to the functions has of presented impairments, the ALJ medical are acting evidence unsupported by on of behalf an of the underlying objective medical 26 In this case, Plaintiff reported that she is unable to sit more 27 than 20 minutes, has many bad days, and needs to lie down three to 28 four times a day. (AR at 15-16, 18-20). Plaintiff testified that she 4 1 often uses a TENS unit for pain. (AR at 15-16). 2 As an initial matter, the Commissioner contends that there was no 3 objective evidence to support the extent of Plaintiff s subjective 4 symptom testimony. (Joint Stipulation at 12). This argument is without 5 merit. A lack of objective evidence to support a claimant s statements 6 regarding 7 claimant s allegations of disabling pain. Lingenfelter, 504 F.3d at 8 1035-36. Further, the ALJ never cited a lack of objective evidence as a 9 reason her for limitations discounting is not a Plaintiff s proper basis complaints. for rejecting Rather, the a ALJ 10 acknowledged that Plaintiff s impairments could reasonably be expected 11 to cause some limitations, but concluded that Plaintiff s allegations 12 concerning her symptoms and their impact on her ability to work were not 13 entirely credible. (AR at 39). A reviewing court can evaluate an 14 agency s decision only on the grounds articulated by the agency. 15 Ceguerra v. Secretary of Health & Human Services, 933 F.2d 735, 738 (9th 16 Cir. 1991) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 17 In the decision, the ALJ gave the following reasons for the adverse 18 credibility determination: (1) Plaintiff was not forced to stop working 19 due to her impairments and limitations, but was laid off or quit for 20 other 21 symptoms; (3) Plaintiff did not receive medical treatment; and (4) 22 Plaintiff has a poor work history. (AR at 39). The ALJ s stated reasons 23 do not provide an adequate basis for rejecting Plaintiff s subjective 24 complaints. reasons; (2) Plaintiff was not taking medications for her 25 In support of the ALJ s first reason for rejecting Plaintiff s 26 credibility, (Plaintiff did not stop working due to her disability), the 27 Commissioner cites Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 28 2001). That facts of that case are quite different than those presented 5 1 here. In Bruton, the claimant s alleged onset date of disability was the 2 same date that he was laid off from his job as a machinist. Id. at 826. 3 Although the claimant alleged that he stopped working for medical 4 reasons, he waited nine months before seeking any medical treatment and 5 he even admitted that he had left his job because he had been laid off, 6 not because of an injury. Id. at 828. Unlike Bruton, the record here 7 does not support the inference that Plaintiff sought disability benefits 8 simply because she was laid off from work. Although Plaintiff admitted 9 that she stopped working in her previous two positions for reasons 10 unrelated to her alleged impairments, both jobs ended long before her 11 alleged onset date of August 2005. (AR at 9-13, 34, 82). Plaintiff s 12 work as a tax receptionist ended in June 2004 and her job as a customer 13 service representative ended in 2003. (AR at 12, 26, 88). There was also 14 evidence that Plaintiff s condition deteriorated since she was last able 15 to work. (See AR at 18-19, 38). Thus, Plaintiff s reasons for leaving 16 her earlier jobs was not a proper basis for rejecting her credibility. 17 The ALJ s second and third reasons for rejecting credibility (lack 18 of medications and medical treatment) are not substantially supported 19 because there was evidence that Plaintiff could not afford to see a 20 medical provider. (AR at 17); Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007) 21 ( [d]isability benefits may not be denied because of the claimant s 22 failure to obtain treatment he cannot obtain for lack of funds ) 23 (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)). Plaintiff 24 testified that she could not afford to pay for medical insurance. (AR at 25 17). When Plaintiff sought medical services from the county, she was told 26 that she did not qualify due to her husband s income. (AR at 17). The ALJ 27 did not question the sincerity of Plaintiff s proffered explanation. See 28 Social Security Ruling 96-7p at *7-8 (stating that an adjudicator must 6 1 not draw any inferences about an individual s symptoms and their 2 functional effects from a failure to seek or pursue regular medical 3 treatment without first considering any explanations that the individual 4 may provide, or other information in the case record, that may explain 5 infrequent or irregular medical visits or failure to seek medical 6 treatment including inability to pay, whether [t]he individual s daily 7 activities may be structured so as to minimize symptoms to a tolerable 8 level or eliminate them entirely, and whether medication may relieve 9 symptoms). 10 Lastly, the ALJ s finding that Plaintiff had a poor work history is 11 belied by the record. (AR at 39). The record shows that Plaintiff worked 12 as a customer service representative for Electronic Data Systems from 13 1991 through 2003. (AR at 26, 88). Plaintiff was laid off shortly after 14 transferring from a Northern California office to a Southern California 15 office. (AR at 26). And, while her work as a tax receptionist lasted for 16 only a few months in 2004, Plaintiff testified that she had been laid off 17 because the tax season had ended. (AR at 26). 18 Accordingly, the ALJ s credibility determination is not supported 19 by substantial evidence in the record. 20 21 IV. Conclusion 22 In general, the choice whether to reverse and remand for further 23 administrative proceedings, or to reverse and simply award benefits, is 24 within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 25 1178 (9th Cir. 2000) (holding that the district court's decision whether 26 to remand for further proceedings or for payment of benefits is 27 discretionary and is subject to review for abuse of discretion)). The 28 Ninth Circuit has observed that the decision whether to remand for 7 1 further proceedings turns upon the likely utility of such proceedings. 2 Id. at 1179; see Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) 3 (noting that a remand for further administrative proceedings is 4 appropriate if enhancement of the record would be useful ). When an ALJ fails to articulate sufficient reasons for rejecting a 5 6 claimant s pain testimony, courts have some flexibility in determining 7 whether to remand for further proceedings. Vasquez v. Astrue, 572 F.3d 8 586, 2009 WL 1941485, *10 (9th Cir. 2009); Connett v. Barnhardt, 340 F.3d 9 871, 876 (9th Cir. 2003) (discussing the Ninth Circuit s conflicting case 10 law and holding that the doctrine is not mandatory because the court has 11 some flexibility in applying the crediting as true theory ). In this 12 case, the record has not been fully developed and, therefore, further 13 administrative proceedings would be useful. (Joint Stipulation at 19); 14 Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993) (remanding for the ALJ 15 to repeat the step four analysis, articulating specific findings for 16 rejecting [the plaintiff s] pain testimony . . . among other things). 17 Accordingly, the appropriate remedy is a remand for further 18 administrative proceedings and a new hearing decision.2 19 // 20 // 21 // 22 23 24 25 26 27 28 2 Because the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not decide whether the remaining issues raised by Plaintiff would independently require reversal. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate). The Court recommends, however, that all of Plaintiff s arguments be considered when determining the merits of her case on remand. 8 1 Accordingly, 2 Commissioner is IT IS reversed HEREBY and ORDERED this that action is the decision remanded for of further 3 proceedings consistent with this Memorandum Opinion. 4 5 Dated: August 17, 2009 6 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 the
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