Roanld Penrose v. Michael J. Astrue, No. 5:2009cv01923 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION; ORDER by Magistrate Judge Oswald Parada: IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedingsconsistent with this Memorandum Opinion. (am)
Download PDF
<![CDATA[
Roanld Penrose v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 RONALD PENROSE, ) Case No. EDCV 09-01923-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 7, 8.) 25 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint 27 Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules 28 of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 1. 6 7 Whether the Administrative Law Judge ( ALJ ) properly considered the relevant medical evidence of record; and 2. 8 Whether the ALJ properly considered Plaintiff s subjective complaints and properly assessed Plaintiff s credibility. 9 (JS at 3.) 10 II. 11 STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 13 to determine whether the Commissioner s findings are supported by substantial 14 evidence and whether the proper legal standards were applied. DeLorme v. 15 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 16 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 17 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 18 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 19 evidence is such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 21 Court must review the record as a whole and consider adverse as well as 22 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 23 Where evidence is susceptible of more than one rational interpretation, the 24 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1453 25 (9th Cir. 1984). 26 / / / 27 / / / 28 / / / 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has the severe impairment of a status post 5 thoracic burst fracture at T12 without neurologic compromise, mild neck 6 degeneration, and a history of carpal tunnel syndrome. (Administrative Record 7 ( AR ) at 10.) The ALJ also found that Plaintiff had the residual functional 8 capacity ( RFC ) to perform light work and retained the capacity to lift and carry 9 twenty pounds occasionally, ten pounds frequently; sit for six hours in an eight10 hour work day; stand/walk for six hours in an eight-hour work day; with occasional 11 postural limitations, occasional fine manipulative limitations bilaterally, and 12 frequent gross manipulative limitations bilaterally. (Id. at 10-11.) The ALJ 13 concluded that Plaintiff could perform his past relevant work as an outside delivery 14 driver. (Id. at 13.) Thus, the ALJ found that Plaintiff was not disabled. (Id.) 15 B. Remand Is Warranted Due to the ALJ s Failure to Properly Consider 16 the Opinions of Plaintiff s Treating Physicians. 17 1. 18 Plaintiff contends that the ALJ failed to properly consider and give Background. 19 appropriate weight to the opinions of Plaintiff s treating physicians, Dr. Chen and 20 Dr. Ianacone. (JS at 5, 7.) Plaintiff argues that the ALJ s summary rejection of 21 their opinions constitutes reversible error. (Id. at 6-7.) 22 2. 23 It is well-established in the Ninth Circuit that a treating physician s opinions Applicable Law. 24 are entitled to special weight, because a treating physician is employed to cure and 25 has a greater opportunity to know and observe the patient as an individual. 26 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 27 physician s opinion is not, however, necessarily conclusive as to either a physical 28 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 3 1 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 2 whether it is supported by sufficient medical data and is consistent with other 3 evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating physician s 4 opinion is uncontroverted by another doctor, it may be rejected only for clear and 5 convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. 6 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician s opinion 7 is controverted, it may be rejected only if the ALJ makes findings setting forth 8 specific and legitimate reasons that are based on the substantial evidence of record. 9 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 10 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). 11 However, the Ninth Circuit also has held that [t]he ALJ need not accept the 12 opinion of any physician, including a treating physician, if that opinion is brief, 13 conclusory, and inadequately supported by clinical findings. Thomas, 278 F.3d at 14 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 15 1992). A treating or examining physician s opinion based on a plaintiff s own 16 complaints may be disregarded if the plaintiff s complaints have been properly 17 discounted. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 18 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews 19 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, [w]here the opinion 20 of the claimant s treating physician is contradicted, and the opinion of a 21 nontreating source is based on independent clinical findings that differ from those 22 of the treating physician, the opinion of the nontreating source may itself be 23 substantial evidence; it is then solely the province of the ALJ to resolve the 24 conflict. Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751); Miller 25 v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 26 / / / 27 3. 28 On August 15, 2007, Dr. Jennifer Tanya Chen, Plaintiff s treating physician, Dr. Chen s Opinion. 4 1 completed a Visit Verification Form, in which she indicated that Plaintiff could 2 participate in a modified work program with the following limitations: no 3 twisting; lifting and carrying up to twenty-five pounds; standing for thirty-minute 4 duration, forty-five minutes per hour, two to three total hours; walking for thirty5 minute duration, forty-five minutes per hour, one to two total hours; and sitting for 6 thirty-minute duration, forty-five minutes per hour, two to three total hours. (AR 7 at 272.) Dr. Chen further indicated that Plaintiff was [l]imited in driving. (Id.) 8 Dr. Chen concluded by stating that if the prescribed modified work program was 9 not available, Plaintiff was unable to work through November 2007. (Id.) She 10 termed these limitations to be Light duty restrictions, adding that I cannot state 11 h[e] is 100% disable[d] . . . (pt is walking, doing functional tasks, not housebound), 12 but I think he has some limitations due to his chronic pain. (Id. at 269.) 13 In his decision, the ALJ rejected Dr. Chen s opinions regarding Plaintiff s 14 limitations because they were inconsistent with light duty. (Id. at 12.) The ALJ 15 also appears to have rejected Dr. Chen s opinion based upon findings of two 16 consultative examiners, whose opinions were contrary to Dr. Chen s opinion. (Id.) 17 Both consultative examiners opined that Plaintiff could perform the light level of 18 work, with only postural limitations. (Id. at 185-88.) Dr. Wong, the first 19 consulting physician, opined that Plaintiff could stand or walk for about six hours 20 in an eight-hour work day and sit for about six hours in an eight-hour work day. 21 (Id. at 181.) Dr. Do, the other consulting physician, did not clarify his light duty 22 finding. (Id. at 187-88.) 23 While the ALJ seemingly provided specific reasons supported by substantial 24 evidence for rejecting the opinion of Dr. Chen, the Court finds the reasons were not 25 legitimate. As the treating physician, Dr. Chen s opinion is entitled to the greatest 26 weight. Magallanes, 881 F.2d at 751. The consulting physicians relied on the 27 same clinical findings as the treating physician; the only difference was their 28 conclusion. This does not amount to substantial evidence. See Orn v. Astrue, 495 5 1 F.3d 625, 632 (9th Cir. 2007) ( When an examining physician relies on the same 2 clinical findings as a treating physician, but differs only in his or her conclusions, 3 the conclusions of the examining physician are not substantial evidence. ). 4 When, however, an examining physician provides independent clinical findings 5 that differ from the findings of the treating physician, such findings are 6 substantial evidence. Id. (citations omitted) (internal quotation marks omitted). 7 Here, both Drs. Wong and Do agreed with the diagnoses provided by Dr. Chen and 8 offered no alternative diagnoses. It also appears that neither doctor conducted any 9 independent objective tests.3 (AR at 180-88.) Indeed, Dr. Wong s diagnoses of a 10 T12 burst fracture without neurologic compromise, and chronic low back pain (id. 11 at 180), does not differ from the treating physician s diagnosis. Dr. Chen 12 repeatedly diagnosed Plaintiff with an old T12 compression fracture with chronic 13 pain, and repeatedly prescribed significant pain medication, including 14 hydrocodone-acetaminophen and morphine. (See, e.g., id. at 146-50, 155-57, 26815 71.) Thus, Dr. Wong s findings were the same as those of the treating physician. 16 It was his conclusions that differed. Orn, 495 F.3d at 633 (citation omitted). 17 Indeed, Dr. Do simply agreed with the opinions of Dr. Wong without providing a 18 separate diagnosis. (AR at 188.) 19 Under the circumstances, neither consulting opinion concerning Plaintiff s 20 ability to work was an independent finding and, therefore, these opinions alone 21 cannot constitute substantial evidence upon which the ALJ can rely. See Orn, 495 22 F.3d at 632 ( Independent clinical findings can be either (1) diagnoses that differ 23 from those offered by another physician and that are supported by substantial 24 evidence, or (2) findings based on objective medical tests that the treating 25 physician has not herself considered. ) (internal citations omitted). Further, the 26 ALJ s rejection of Dr. Chen s opinion because the specific restrictions were 27 28 3 Indeed, it appears Dr. Do did not even examine Plaintiff. (AR at 187-88.) 6 1 inconsistent with light duty is vague and ambiguous and does not amount to a 2 specific reason supported by substantial evidence. Embrey v. Bowen, 849 F.2d 3 418, 421-22 (9th Cir. 1988) (conclusory reason does not achieve the level of 4 specificity required to justify and ALJ s rejection of a treating source s medical 5 opinion). Moreover there is no evidence that Dr. Chen intended the phrase Light 6 duty restrictions to mean exactly the same as light work as defined by the 7 Administration. 8 Based on the foregoing, the Court finds that the ALJ committed legal error 9 by failing to provide specific and legitimate reasons, based upon substantial 10 evidence, to reject the opinion of Dr. Chen. On remand, the ALJ should further 11 develop the record as to these issues, especially as they relate to Plaintiff s 12 limitations and RFC, including assessing the effect of Plaintiff s pain medications 13 on his ability to drive. 14 4. 15 On June 23, 2008, Plaintiff s treating physician, Dr. David Christopher Dr. Ianacone s Opinion. 16 Ianacone, completed a work limitation form entitled, Medical Opinion Re: Ability 17 To Do Work-Related Activities (Physical). 4 (AR at 446-48.) Dr. Ianacone 18 concluded that based on Plaintiff s multi-level degenerative disc disease, 19 compression fracture T12 wedge deformity, and multiple hand operations with 20 hypesthesia, Plaintiff could walk or stand for less than two hours in an eight-hour 21 work day, sit for about two hours in an eight-hour work day, would need to 22 alternate sitting or standing and walking every ten minutes, and would need to lie 23 down at unpredictable intervals during the day. (Id. at 446-47.) Dr. Ianacone 24 further noted that Plaintiff s impairments would cause him to be absent from work 25 26 4 Although the report was made after the last insured date of June 30, 2007, 27 reports containing observations made after the period for disability are relevant to 28 assess the claimant s disability. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). 7 1 more than three times a month. (Id. at 448.) 2 The ALJ rejected Dr. Ianacone s opinion, finding that he did not provide 3 objective evidence to support his findings. (Id. at 13); see also Crane v. Shalala, 76 4 F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected doctor s opinion because they 5 were check-off reports that did not contain any explanation of the bases of their 6 conclusions); Thomas, 278 F.3d at 957. The ALJ s conclusion that Dr. Ianacone s 7 report is not supported by objective medical evidence is insufficient, as it does not 8 reach the level of specificity required in order to reject the opinion of a treating 9 physician. Embrey, 849 F.2d at 421-22 ( To say that medical opinions are not 10 supported by sufficient objective findings or are contrary to the preponderant 11 conclusions mandated by the objective findings does not achieve the level of 12 specificity our prior cases have required, even when the objective factors are listed 13 seriatim. The ALJ must do more than offer his conclusions. He must set forth his 14 own interpretations and explain why they, rather than the [treating] doctors , are 15 correct. ) (footnote omitted). 16 Moreover, the ALJ s assertions concerning the lack of objective medical 17 evidence to support Dr. Ianacone s opinion is not entirely accurate. It is improper 18 to reject a treating physician s opinion where he provided at least some objective 19 observations and testing in addition to subjective opinions. See id. at 421; see also 20 20 C.F.R. § 404.1527 (the proper weight that an ALJ should give to a treating 21 physician s opinion depends on whether sufficient data supports the opinion and 22 whether the opinion comports with other evidence in the record); Sprague v. 23 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (when the treating physician 24 diagnosed the claimant with depression, set forth clinical observations supporting 25 the diagnosis, and prescribed psychotherapeutic drugs, the ALJ erred in finding 26 that the claimant had not set forth sufficient evidence to substantiate the mental 27 impairment). 28 Here, Dr. Ianacone explained that his opinion was based on MRI and x-ray 8 1 results. (AR at 447.) He noted that Plaintiff suffered from multi-level 2 degenerative disc disease, compression fracture T12 wedge deformity, and multiple 3 hand operations with hypesthesia. (Id.) Further, from at least October 2007 4 through August 2008, Plaintiff was consistently treated by Dr. Ianacone, as 5 evidenced by the progress notes contained in the record. (See, e.g., id. at 298, 3126 14, 328, 395-97, 408-09, 431-32, 444, 487.) During this time, Dr. Ianacone 7 repeatedly diagnosed Plaintiff with low back pain, chronic; lumbar radiculopathy; 8 thoracic fracture, traumatic, compression; degeneration of cervical intervertebral 9 disc; and carpal tunnel syndrome; and he prescribed various pain medications. 10 (Id.) Indeed, on June 25, 2008 two days after completing the work restriction 11 form Dr. Ianacone noted that Plaintiff s back pain seemed to be significant and 12 that an MRI showed L4-L5 diffuse disc bulge with other pathology. (Id. at 328.) 13 Based on the foregoing, the Court finds that the ALJ s reason for rejecting 14 Dr. Ianacone s opinion was insufficient. Accordingly, remand is required for the 15 ALJ to set forth legally sufficient reasons for rejecting Dr. Ianacone s opinion, if 16 the ALJ again determines that rejection is warranted.5 17 C. The ALJ Erred in Rejecting Plaintiff s Subjective Complaints and 18 Plaintiff s Credibility. 19 Plaintiff also contends that the ALJ failed to provide clear and convincing 20 reasons for rejecting Plaintiff s subjective pain complaints. (JS at 18.) Plaintiff 21 argues that the ALJ failed to specify which allegations of pain and other symptoms 22 he found not credible. (Id. at 17.) Plaintiff also claims that the ALJ failed to 23 consider the factors in Social Security Ruling ( SSR ) 96-7p in rejecting his 24 subjective symptoms. (Id.) 25 1. 26 An ALJ s assessment of pain severity and claimant credibility is entitled to Applicable Law. 27 28 5 The Court expresses no view on the merits. 9 1 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 2 Heckler, 779 F.2d 528, 531 (9th Cir. 1986), as amended. When, as here, an ALJ s 3 disbelief of a claimant s testimony is a critical factor in a decision to deny benefits, 4 the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 5 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 6 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit 7 finding that claimant was not credible is insufficient). 8 Under the Cotton test, where the claimant has produced objective medical 9 evidence of an impairment which could reasonably be expected to produce some 10 degree of pain and/or other symptoms, and the record is devoid of any affirmative 11 evidence of malingering, the ALJ may reject the claimant s testimony regarding 12 the severity of the claimant s pain and/or other symptoms only if the ALJ makes 13 specific findings stating clear and convincing reasons for doing so. See Cotton v. 14 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 15 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 16 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc). 17 To determine whether a claimant s testimony regarding the severity of his 18 symptoms is credible, the ALJ may consider the following evidence: (1) ordinary 19 techniques of credibility evaluation, such as the claimant s reputation for lying, 20 prior inconsistent statements concerning the symptoms, and other testimony by the 21 claimant that appears less than candid; (2) unexplained or inadequately explained 22 failure to seek treatment or to follow a prescribed course of treatment; (3) the 23 claimant s daily activities; and (4) testimony from physicians and third parties 24 concerning the nature, severity, and effect of the claimant s symptoms. Thomas, 25 278 F.3d at 958-59; see also Smolen, 80 F.3d at 1284. 26 27 28 10 1 SSR 96-7p6 further provides factors that may be considered to determine a 2 claimant s credibility such as: 1) the individual s daily activities; 2) the location, 3 duration, frequency, and intensity of the individual s pain and other symptoms; 3) 4 factors that precipitate and aggravate the symptoms; 4) the type, dosage, 5 effectiveness, and side effects of any medication the individual takes or has taken 6 to alleviate pain or other symptoms; 5) treatment, other than medication, the 7 individual receives or has received for relief of pain or other symptoms; 6) any 8 measures other than treatment the individual uses or has used to relieve pain or 9 other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes 10 every hour, or sleeping on a board); and 7) any other factors concerning the 11 individual s functional limitations and restrictions due to pain or other symptoms. 12 SSR 96-7p. 13 2. 14 Here, the ALJ discredited Plaintiff s subjective symptoms of pain for the Analysis. 15 following reasons: (1) Plaintiff s allegations were unsupported by the objective 16 medical evidence, as evidenced by the normal neurological examinations and lack 17 of evidence of nerve encroachment from compression or nerve problems from neck 18 degeneration; and (2) Plaintiff s daily activities were inconsistent with his 19 allegations of pain. (AR at 11-12.) 20 First, the ALJ based his adverse credibility finding on the lack of support in 21 the objective medical record. (Id. at 11-12.) The ALJ stated: 22 I find that the severity alleged by the claimant regarding his 23 complaints of disabling pain and limitation is not fully supported in light 24 of the evidence of record which contains normal neurological 25 examinations. The claimant s compression fracture should have healed 26 27 6 Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 28 F.2d 1273, 1275 n.1 (9th Cir. 1990). 11 1 by now, and there is no objective evidence that it has not other than 2 subjective complaints. The claimant is not a surgical candidate, and his 3 own treating physician at Exhibit 7F, p. 11, says he retains the capacity 4 for light duty. The claimant had repeatedly tried to get his doctor to say 5 he is disabled, and his doctor would not do it until recently, and it might 6 not even be the same doctor. The claimant had no neck complaints 7 despite MRI. Although the claimant states his pain is constant, there is 8 no objective basis for such constant pain, and no evidence of nerve 9 encroachment from compression, as well as no evidence of nerve 10 problem from neck degeneration. The claimant s pain is way out of 11 proportion to objective findings. 12 (Id. at 12 (citations omitted).) 13 Preliminarily, the ALJ is not permitted to disregard Plaintiff s testimony of 14 pain solely because the degree of pain alleged by Plaintiff was not supported by 15 objective medical evidence. See Bunnell, 947 F.2d at 346-47. Further, the record 16 does not support the ALJ s contention that Plaintiff s pain testimony is not 17 supported by objective medical evidence. 18 Plaintiff testified that he is in chronic pain. At the administrative hearing, 19 Plaintiff testified, among other things, that he could not stand or sit in one position 20 too long, must lie down every day because he becomes tired and his back gets sore, 21 his legs become numb and begin to tingle, and he could only drive for about fifteen 22 minutes before his legs begin tingling. (AR at 20-22, 26-27.) He also takes pain 23 medication daily, including morphine and vicodin, which makes him spacey, 24 sick, and tired. (Id. at 23-25.) Based on review of the record, Plaintiff provided 25 sufficient medical evidence of an underlying impairment that was reasonably likely 26 to cause the symptoms he described. 27 The record is replete with objective clinical findings which support and 28 confirm Plaintiff s allegations of severe and chronic pain. (See, e.g., id. at 147 12 1 (diagnosed with fx thoracic, traumatic, compression), 152 (moderately limited in 2 all trunk movements, with extension severely limited; flexibility and mobility 3 decreased; severe tightness of lower traps; and fractured vertebra), 156 (diagnosed 4 with old compressive changes of the T12 vertebral body and mild degenerative 5 changes), 158 (slight compressive changes of the superior end-plate of the T12 6 vertebral body and tender cervico-thoracic junction), 159 (noted chronic nature of 7 back recovery), 161 (diagnosed with fractured vertebra, with impaired joint 8 mobility, motor function, and muscle performance), 166 (recommended limited 9 activities), 167-68 (x-ray showed slight more compression than previously and 10 advised to continue wearing back brace), 176 (Plaintiff placed in back brace), 177 11 (slight compressive changes of the superior end-plate of the T12 vertebral body), 12 178 (anterior compression fracture of the T12 vertebral body), 262 (old 13 compressive changes of the T12 vertebral body), 269 (Dr. Chen noting that she 14 believes Plaintiff has some limitations because of his chronic pain), 276 (pain 15 disorder and chronic pain), 292 (teaching guided relaxation techniques for pain), 16 298 (two frozen fingers on each hand and medications having significant cognitive 17 and sedating effects), 299 (carpal tunnel syndrome), 301 (multi-level degenerative 18 disc disease, diffuse disc bulge, left lateral annular tear with associated small 19 superior migration of the disc extrusion), 313 (thoracic fracture, chronic low back 20 pain, lumbar radiculopathy), 325 (multi-level degenerative disc disease), 388 (foot 21 numbness and lower back pain may be caused by L5-S1 listhesis and thoracic pain 22 from the T12 fracture), 391 (moderate degenerative disc disease, decreased disc 23 space at multiple levels, and neuroforaminal encroachment), 431 (chronic low back 24 pain, lumbar radiculopathy, thoracic fracture, and degeneration of cervical 25 intervertebral disc), 478 (MRI showing minimal disc bulging).) Further, as noted 26 above, Dr. Chen, Plaintiff s treating physician, concluded that Plaintiff had serious 27 work limitations: Plaintiff could lift and carry up to twenty-five pounds; no 28 twisting; standing for thirty-minute duration, forty-five minutes per hour, for a total 13 1 of two to three hours; walking for thirty-minute duration, forty-five minutes per 2 hour, for a total of one to two hours; sitting for thirty-minute duration, forty-five 3 minutes per hour, for a total of two to three hours; and limited driving. (Id. at 272.) 4 Dr. Chen also noted that if this modified program was not available, Plaintiff was 5 unable to work. (Id.) 6 Moreover, Plaintiff has consistently complained of back pain and tingling in 7 his legs. (See, e.g., id. at 146 (complaints in difficulty sitting and standing for long 8 periods), 151 (constant, dull, sharp, stabbing, and throbbing pain and impaired 9 sensation in legs), 155 (constant pain in thoracic region and lower lumbar region), 10 158 (pain in upper, mid, and lower back; occasional tingling and numbness in 11 legs), 160 (back pain), 161 (intermittent tingling), 164 (tingling in the feet), 177 12 (tingling in the feet), 268 (chronic back pain; intermittent numbness in legs; 13 Plaintiff gets sleepy from taking morphine), 306 (back pain), 387 (numbness and 14 tingling), 404 (constant pain in back, which worsens with prolonged sitting or 15 standing; numbness and tingling), 420 (symptoms getting worse), 442 (pain getting 16 worse).) 17 In short, there was no positive evidence that Plaintiff was not suffering as 18 much pain as he claimed. As such, the ALJ erred to the extent he rejected 19 Plaintiff s credibility based upon a lack of objective findings to support the alleged 20 severity of Plaintiff s pain allegations. See Bunnell, 947 F.2d at 345 ( [O]nce the 21 claimant produces objective medical evidence of an underlying impairment, [the 22 ALJ] may not reject a claimant s subjective complaints based solely on a lack of 23 objective medical evidence to fully corroborate the alleged severity of pain. ); 24 Smolen, 80 F.3d at 1282 ( the claimant need not produce objective medical 25 evidence of the pain or fatigue itself, or the severity thereof. ); SSR 96-7p ( An 26 individual s statements about the intensity and persistence of pain or other 27 symptoms or about the effect the symptoms have on his or her ability to work may 28 not be disregarded solely because they are not substantiated by objective medical 14 1 evidence. ). 2 Second, the ALJ rejected Plaintiff s credibility because Plaintiff s daily 3 activities were inconsistent with his pain allegations. (See AR at 12.) The ALJ 4 noted that Plaintiff could perform light household chores, including making the 5 bed, doing the dishes, driving a car, watching television, and sometimes going 6 shopping. (Id.) The ALJ s statements are not supported by a review of the entire 7 record. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ( [A] 8 reviewing court must consider the entire record as a whole and may not affirm 9 simply by isolating a specific quantum of supporting evidence. ) (internal 10 quotation marks and citation omitted). 11 For example, although Plaintiff admitted he could watch television, put the 12 dishes in the dishwasher, make the bed, and dust, the ALJ did not address 13 Plaintiff s statements that he needed to lie down every day, could only drive for 14 fifteen minutes before his legs began tingling and/or became numb, had trouble 15 standing, needed numerous breaks, and had trouble sitting for long periods of time. 16 (See AR at 20-22, 27, 33-37, 113, 115, 141.) The ALJ erred in selectively relying 17 on the record to support his rejection of Plaintiff s pain testimony. See Reddick v. 18 Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) ( In essence, the ALJ developed his 19 evidentiary basis by not fully accounting for the context of materials or all parts of 20 the testimony and reports. His paraphrasing of record material is not entirely 21 accurate regarding the content or tone of the record. ); Gallant, 753 F.2d at 1456 22 ( Although it is within the power of the [ALJ] to make findings concerning the 23 credibility of a witness and to weigh conflicting evidence, he cannot reach a 24 conclusion first, and then attempt to justify it by ignoring competent evidence in 25 the record that suggests an opposite result. ) (citations omitted). 26 Moreover, even if Plaintiff can do light household chores, the ALJ failed 27 to establish how Plaintiff s statements that he can perform some simple, non28 stressful activities of daily living translate into an ability to work. See Gonzalez v. 15 1 Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ errs in failing to make a 2 finding to the effect that ability to perform daily activities translated into the ability 3 to perform appropriate work); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) 4 (disability claimant need not vegetate in dark room in order to be deemed 5 eligible for benefits). Daily activities may be grounds for an adverse credibility 6 finding if a claimant is able to spend a substantial part of his day engaged in 7 pursuits involving the performance of physical functions that are transferable to a 8 work setting[.] Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Burch 9 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (stating that adverse credibility 10 finding based on activities may be proper if a claimant engages in numerous daily 11 activities involving skills that could be transferred to the workplace ). The ALJ 12 must make specific findings relating to the daily activities and their transferability 13 to conclude that a claimant s daily activities warrant an adverse credibility 14 determination Orn, 495 F.3d at 639 (internal quotation marks, brackets and 15 citation omitted). 16 Here, there is neither evidence to support that [Plaintiff s] activities were 17 transferable to a work setting nor proof that [Plaintiff] spent a substantial part of 18 his day engaged in transferable skills. Id. (internal quotation marks omitted); see 19 also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ( This court has 20 repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 21 activities, such as grocery shopping, driving a car, or limited walking for exercise, 22 does not in any way detract from her credibility as to her overall disability. ); 23 Reddick, 157 F.3d at 722 (only if a claimant s level of activity is inconsistent with 24 his alleged limitations will these activities have any bearing on his credibility); 25 Smolen, 80 F.3d at 1284 n.7 (noting that although the ALJ can rely on a plaintiff s 26 substantial daily activities to discredit plaintiff s testimony regarding his inability 27 to work, this line of reasoning has its limits[;] . . . [t]he Social Security Act does 28 not require that claimants be utterly incapacitated to be eligible for benefits ); Fair, 16 1 885 F.2d at 603 ( [M]any home activities are not easily transferable to what may 2 be the more grueling environment of the workplace, where it might be impossible 3 to periodically rest or take medication. ). Accordingly, the ALJ s conclusion 4 regarding Plaintiff s daily activities is not supported by substantial evidence. 5 Based on the foregoing, the Court finds that the ALJ did not provide clear 6 and convincing reasons for his adverse credibility determination. Accordingly, 7 remand is required for the ALJ to set forth clear and convincing reasons for 8 rejecting Plaintiff s subjective pain complaints, if the ALJ again determines that 9 rejection is warranted. 10 D. 11 Proceedings. 12 The law is well established that remand for further proceedings is This Case Should Be Remanded for Further Administrative 13 appropriate where additional proceedings could remedy defects in the 14 Commissioner s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 15 Remand for payment of benefits is appropriate where no useful purpose would be 16 served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 17 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 18 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 19 unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 20 (9th Cir. 1985). 21 Here, the Court concludes that this is an instance where further 22 administrative proceedings would serve a useful purpose and remedy 23 administrative defects. 24 / / / 25 / / / 26 / / / 27 28 IV. ORDER 17 1 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 2 THAT Judgment be entered reversing the decision of the Commissioner of Social 3 Security and remanding this matter for further administrative proceedings 4 consistent with this Memorandum Opinion. 5 6 Dated: August 4, 2010 7 HONORABLE OSWALD PARADA United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
]]>
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.
