Gregory Nobles v. Michael J. Astrue, No. 5:2009cv01543 - Document 18 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that plaintiffs request for relief is granted, and the Commissioner shall award plaintiff Gregory Nobles disability benefits under both Title II and SSI, 42 U.S.C. §§ 423, 1382(a). See order for further details. (jy)
Download PDF
<![CDATA[
Gregory Nobles v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 GREGORY NOBLES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) Case No. EDCV 09-1543-RC OPINION AND ORDER 17 18 Plaintiff Gregory Nobles filed a complaint on August 19, 2009, 19 seeking review of the Commissioner’s decision denying his applications 20 for disability benefits. 21 answered the complaint, and the parties filed a joint stipulation on 22 March 17, 2010. On February 3, 2010, the Commissioner 23 24 25 BACKGROUND On March 19, 2007, plaintiff, who was born on January 3, 1965, 26 applied for disability benefits under both Title II of the Social 27 Security Act (“Act”), 42 U.S.C. § 423, and the Supplemental Security 28 Income program (“SSI”) of Title XVI of the Act, claiming an inability Dockets.Justia.com 1 to work since February 23, 2006, due to a back injury. A.R. 108-18, 2 128. 3 2007, and were again denied on August 30, 2007, following 4 reconsideration. 5 administrative hearing, which was held before Administrative Law Judge 6 David M. Ganly (“the ALJ”) on December 16, 2008. 7 April 14, 2009, the ALJ issued a decision finding plaintiff is not 8 disabled. 9 Appeals Council, which denied review on June 15, 2009. The plaintiff’s applications were initially denied on June 6, A.R. 54-58, 61-65. A.R. 5-15. The plaintiff then requested an A.R. 16-49, 67. On The plaintiff appealed this decision to the A.R. 1-4. 10 11 DISCUSSION 12 I The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 13 14 review the decision denying plaintiff disability benefits to determine 15 if his findings are supported by substantial evidence and whether the 16 Commissioner used the proper legal standards in reaching his decision. 17 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 18 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 19 “disabled” for the purpose of receiving benefits under the Act if he 20 is unable to engage in any substantial gainful activity due to an 21 impairment which has lasted, or is expected to last, for a continuous 22 period of at least twelve months. 23 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 24 bears the burden of establishing a prima facie case of disability.” 25 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 26 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 27 1996). 28 // The claimant is 42 U.S.C. §§ 423(d)(1)(A), 2 “The claimant 1 The Commissioner has promulgated regulations establishing a five- 2 step sequential evaluation process for the ALJ to follow in a 3 disability case. 4 the ALJ must determine whether the claimant is currently engaged in 5 substantial gainful activity. 6 If not, in the Second Step, the ALJ must determine whether the 7 claimant has a severe impairment or combination of impairments 8 significantly limiting him from performing basic work activities. 9 C.F.R. §§ 404.1520(c), 416.920(c). 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 10 must determine whether the claimant has an impairment or combination 11 of impairments that meets or equals the requirements of the Listing of 12 Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 13 C.F.R. §§ 404.1520(d), 416.920(d). 14 ALJ must determine whether the claimant has sufficient residual 15 functional capacity despite the impairment or various limitations to 16 perform his past work. 17 in Step Five, the burden shifts to the Commissioner to show the 18 claimant can perform other work that exists in significant numbers in 19 the national economy. 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 20 21 Applying the five-step sequential evaluation process, the ALJ 22 found plaintiff has not engaged in substantial gainful activity since 23 his alleged onset date.1 24 has the severe impairment of “degenerative disc disease of the lumbar 25 spine” (Step Two); however, he does not have an impairment or 26 combination of impairments that meets or equals a listed impairment. (Step One). The ALJ then found plaintiff 27 1 28 The ALJ also found plaintiff meets the insured status requirements under Title II through March 31, 2011. A.R. 10. 3 1 (Step Three). The ALJ next determined plaintiff is unable to perform 2 his past relevant work. 3 plaintiff can perform a significant number of jobs in the national 4 economy; therefore, he is not disabled. (Step Four). Finally, the ALJ found (Step Five). 5 6 II 7 A claimant’s residual functional capacity (“RFC”) is what he can 8 still do despite his physical, mental, nonexertional, and other 9 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 10 Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 11 2009). 12 work “except for occasional postural limitations, use of a cane as 13 needed, and avoiding hazards such as machinery and heights.”2 14 11. 15 erroneously determined plaintiff was not an entirely credible witness. 16 The plaintiff is correct. Here, the ALJ found plaintiff has the RFC to perform light A.R. However, the plaintiff contends, among other things, that the ALJ 17 18 19 On July 19, 2004, plaintiff, who had previously undergone a lumbar discectomy, reinjured himself. A.R. 169, 221, 226. He 20 21 22 23 24 25 26 27 28 2 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, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “[T]he full range of light work requires standing or walking for up to two-thirds of the workday.” Gallant v. Heckler, 753 F.2d 1450, 1454 n.1 (9th Cir. 1984); SSR 83-10, 1983 WL 31251, *6. 4 1 testified at the administrative hearing that he is now unable to work 2 due to back pain that has worsened over time. 3 his back pain radiates down his right leg, and he has numbness in his 4 feet. 5 brace and uses a cane to walk, A.R. 37, and he cannot bend and cannot 6 lift anything heavier than a kitchen plate. 7 Additionally, plaintiff stated he cannot stand for more than 10 8 minutes at a time, or sit for more than 15-20 minutes a time, before 9 having to change positions, and he spends about three hours a day 10 A.R. 36-37. A.R. 35-36. He stated The plaintiff further testified he wears a back resting due to his condition. A.R. 38-39. A.R. 39-40. 11 12 Once a claimant has presented objective evidence that he suffers 13 from an impairment that could cause pain or other nonexertional 14 limitations,3 the ALJ may not discredit the claimant’s testimony 15 “solely because the degree of pain alleged by the claimant is not 16 supported by objective medical evidence.” 17 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 18 882, 885 (9th Cir. 2004). 19 subjective complaints are not credible, he “‘must provide specific, 20 cogent reasons for the disbelief.’” 21 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 22 635 (9th Cir. 2007). 23 establishing an objective basis for some degree of pain and related 24 symptoms, and no evidence affirmatively suggesting the claimant is Bunnell v. Sullivan, 947 Thus, if the ALJ finds the claimant’s Greger v. Barnhart, 464 F.3d 968, Furthermore, if there is medical evidence 25 26 27 28 3 “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). 5 1 malingering, the ALJ’s reasons for rejecting the claimant’s testimony 2 must be “clear and convincing.” 3 Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 572 F.3d at 591. Morgan v. Comm’r of the Soc. Sec. 4 5 Here, the ALJ gave several reasons for finding plaintiff was not 6 totally credible.4 7 “disabling pain and limitation are not fully credible to the extent 8 alleged[,]” based on his conclusions that plaintiff’s “primary 9 interest appears to be disability benefits” since plaintiff is “not 10 interested in surgery although [his] prior 1997 surgery for a prior 11 injury caused improvement[,]” and plaintiff also is “not interested in 12 vocational rehabilitation.” 13 plaintiff’s “statements are inconsistent with the information provided 14 by the consultative examiner[,]” Dr. Jeff Altman.5 15 16 17 18 19 The ALJ determined plaintiff’s complaints of A.R. 13. Additionally, the ALJ found A.R. 13. 4 Although the Commissioner cites evidence and reasoning the ALJ did not rely upon in making his adverse credibility determination, see Jt. Stip. at 19:17-27, this Court “review[s] only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630; Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 n.2 (9th Cir. 2008). 20 5 21 22 23 24 25 26 27 28 Dr. Altman examined plaintiff on May 23, 2007, and opined plaintiff has the following RFC: Pushing, pulling, lifting, and carrying will be 50 pounds occasionally and 25 pounds frequently. Walking and standing would be done for six hours in an eighthour workday. Sitting would be done for six hours in an eight-hour workday. Postural activities would be done on a frequent basis. Agility activities would be on a frequent basis. Assistive device is not medically necessary. Gross and fine manipulative [movements] can be done without restrictions. A.R. 172. 6 On July 2, 2007, plaintiff’s treating orthopedist, Rajiv Puri, 1 2 M.D., recommended plaintiff have “posterior spinal decompression and 3 fusion at L5-S1 with interbody fusion[,] pedicle screw fixation and 4 iliac bone graft harvesting.” 5 in light of plaintiff’s ongoing back pain, which did not respond to 6 any kind of treatment, including physical therapy, medication, and 7 epidural steroid injection. 8 hearing, plaintiff testified he does not want to undergo another 9 surgery because he had a difficult time recovering from his previous 10 surgery and he continued to experience pain even before he reinjured 11 himself. 12 history of prior back surgery). 13 wanted to try nerve block injections recommended by Dr. Puri. 14 42. 15 changes . . . are unpredictable in their response to surgical 16 intervention[,] and [surgery] should be performed as a last resort[,]” 17 A.R. 290,6 plaintiff’s decision to forgo major spinal surgery does not 18 support the ALJ’s adverse credibility determination. 19 Nichols v. Califano, 556 F.2d 931, 933 (9th Cir. 1977) (“A claimant 20 under a disability need not submit to all treatment, no matter how 21 painful, dangerous, or uncertain of success, merely because one 22 physician believes that a remedy may be effective. . . . 23 may be acting reasonably in refusing surgery that is painful or A.R. 189. Id. Dr. Puri recommended surgery However, at the administrative A.R. 37-38, 40-42; see also A.R. 170, 221, 286 (detailing Instead, plaintiff stated that he A.R. Since plaintiff’s “degenerative facet and degenerative disc See, e.g., A patient 24 6 25 26 27 28 On September 18, 2007, John S. Portwood, M.D., an agreed (worker’s compensation) medical examiner, found plaintiff to be permanent and stationary, and recommended plaintiff “continue[] medical management and work restrictions to prevent worsening of his back condition over time[,]” because, in part, plaintiff “has no acute changes on CT myelogram or on MRI that would indicate the absolute need for surgical intervention.” A.R. 290. 7 1 dangerous.”); Golphin v. Astrue, 2010 WL 114488, *5 (C.D. Cal.) (“The 2 ALJ's reliance on plaintiff’s declination of back surgery was 3 improper. 4 would have provided plaintiff with ‘complete relief.’. . . 5 determination about plaintiff’s credibility should not have been based 6 on the fact that plaintiff decided not to undergo an elective 7 procedure that would not guarantee relief.”). There is no indication in the record that back surgery The ALJ’s 8 9 Second, the ALJ’s finding that plaintiff is not interested in 10 vocational rehabilitation is simply not supported by the record. 11 Vocational expert Troy Scott testified that plaintiff could not get 12 vocational rehabilitation through the worker’s compensation program 13 because the California Legislature had eliminated this benefit for 14 workers who were injured in 2004, such as plaintiff. 15 Furthermore, plaintiff testified he was unaware he could get free 16 vocational rehabilitation from the California Department of 17 Rehabilitation, but stated “[i]f there’s a job that will take [him]” 18 with his restrictions, he would do the job. A.R. 44. A.R. 43-45. 19 20 Finally, the ALJ’s finding that plaintiff’s “statements are in- 21 consistent with” Dr. Altman’s information is conclusory since the ALJ 22 did not cite any specific inconsistencies, Morgan, 169 F.3d at 599; 23 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993), and, in any 24 event, “[i]t is improper as a matter of law to discredit excess pain 25 testimony solely on the ground that it is not fully corroborated by 26 objective medical findings.” 27 (9th Cir. 1986); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 28 2007). Cotton v. Bowen, 799 F.2d 1403, 1407 8 For all these reasons, the ALJ’s rationale for discounting 1 2 plaintiff’s credibility were not “clear and convincing”; thus, neither 3 the RFC assessment nor “the ALJ’s step-five determination, [which] was 4 based on this erroneous RFC assessment[,]” is supported by substantial 5 evidence. Lingenfelter, 504 F.3d at 1040-41. 6 7 III 8 This Court has discretion to award disability benefits to a 9 claimant when there is no need to remand the case for additional 10 factual findings. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th 11 Cir. 2002); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). 12 “[W]here the record has been developed fully and further 13 administrative proceedings would serve no useful purpose, the district 14 court should remand for an immediate award of benefits.” 15 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Moisa, 367 F.3d at 887. Benecke v. 16 17 “When an ‘ALJ’s reasons for rejecting the claimant’s testimony 18 are legally insufficient and it is clear from the record that the ALJ 19 would be required to determine the claimant disabled if he had 20 credited the claimant’s testimony,’ [this Court] remand[s] for 21 calculation of benefits.” 22 Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)); Lingenfelter, 504 F.3d 23 at 1041. 24 plaintiff’s testimony was credited, it is clear plaintiff could not 25 perform any work in the national economy (Step Five). 26 Therefore, plaintiff should be awarded both Title II and SSI 27 // 28 // Orn, 495 F.3d at 640 (quoting Connett v. Here, vocational expert Troy Scott testified that if 9 A.R. 48. 1 disability benefits.7 2 (“[T]he vocational expert’s testimony that sufficient jobs did not 3 exist for a person with the limitations testified to by [the claimant] 4 required a finding at step five that [the claimant] was disabled 5 during the relevant time period.”). See Lingenfelter, 504 F.3d at 1035, 1041 6 7 ORDER 8 IT IS ORDERED that plaintiff’s request for relief is granted, and 9 the Commissioner shall award plaintiff Gregory Nobles disability 10 benefits under both Title II and SSI, 42 U.S.C. §§ 423, 1382(a). 11 12 DATE: August 24, 2010 13 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 7 27 Having reached this conclusion, it is unnecessary to address plaintiff’s other claims. 28 R&R-MDO\09-1543.mdo 8/24/10 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
