Clifton M Lewis v. Michael J Astrue, No. 5:2009cv01938 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. The Commissioners decision is REVERSED, and this case is remanded to the Commissioner for the payment of benefits to plaintiff. Judgement shall be entered in favor of plaintiff, and this action shall be dismissed with prejudice. (mz)
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Clifton M Lewis v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CLIFTON M. LEWIS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner ) of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-01938-MAN MEMORANDUM OPINION AND ORDER 17 Plaintiff filed a Complaint on October 15, 2009, seeking review of 18 the denial by the Social Security Commissioner (“Commissioner”) of 19 plaintiff’s application for disability insurance benefits (“DIB”) for a 20 closed period of disability, from August 1, 2001, through June 1, 2004. 21 On November 13, 2009, the parties consented to proceed before the 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). 24 which: 25 and awarding benefits or, in the alternative, remanding the matter for 26 further 27 affirming the Commissioner’s decision. The Court has taken the parties’ 28 Joint Stipulation under submission without oral argument. The parties filed a Joint Stipulation on July 16, 2010, in plaintiff seeks an order reversing the Commissioner’s decision administrative proceedings; and defendant seeks an order Dockets.Justia.com 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On December 26, 2001, plaintiff filed an application for a period 4 of disability and DIB, in which he alleged a disability onset date of 5 August 1, 2001 due to a back injury. 6 59-61, 71.) 7 (A.R. 72.) (Administrative Record (“A.R.”) Plaintiff has past relevant work as a handyman and mason. 8 9 After the denial of plaintiff’s application initially and upon 10 reconsideration 11 hearing (A.R. 34). On February 25, 2003, plaintiff, who was represented 12 by counsel, testified at a hearing before Administrative Law Judge John 13 W. Belcher (“ALJ Belcher”). 14 supplemental hearing was held. 15 Belcher denied plaintiff’s application. (A.R. 15-18.) Plaintiff timely 16 appealed 17 plaintiff’s request for review. (A.R. 4-6.) On May 20, 2004, plaintiff 18 sought review in this Court (Case No. EDCV 04-593-MAN), which remanded 19 the case for further proceedings in a March 30, 2006 Order (the “2006 20 Remand Order”).1 ALJ (A.R. 22-27, Belcher’s 30-33), plaintiff (A.R. 197-227.) (A.R. 228-49.) decision, and the timely requested a On June 2, 2003, a On July 17, 2003, ALJ Appeals Council denied (A.R. 280-301.) 21 22 On May 11, 2006, the Appeals Council effectuated the 2006 Remand 23 Order (A.R. 279) and remanded the matter for a supplemental hearing, 24 25 26 27 28 1 In its 2006 Remand Order, the Court ordered the ALJ to: (1) “clarify and develop the record as to whether Plaintiff’s back impairment requires fusion surgery, and therefore meets a Listing, through eliciting an additional opinion on this specific issue from a medical expert, an examining doctor, or one of Plaintiff’s treating doctors;” and (2) “address each of Plaintiff’s claimed limitations in his decision on remand.” (A.R. 293, 299.) 2 1 which occurred on August 3, 2006. (A.R. 368-89.) Plaintiff again 2 testified before ALJ Belcher. (Id.) 3 his attorney, requested a closed period of disability from August 1, 4 2001, through June 1, 2004. 5 Belcher again denied plaintiff’s application. 6 10, 2007, plaintiff again appealed to this Court (Case No. EDCV 07-412- 7 MAN), and on August 29, 2008, the Court again remanded the case for 8 further proceedings (the “2008 Remand Order”). 9 2008 Remand Order, the Court ordered the ALJ to specify the allegations 10 of pain and/or symptoms he found not to be credible and provide clear 11 and convincing reasons, based upon substantial evidence in the record, 12 for rejecting them. (A.R. 448.) At the hearing, plaintiff, through (A.R. 371.) On January 19, 2007, ALJ (A.R. 256-60.) (A.R. 438-50.) On April In the 13 On February 20, 2009, the Appeals Council effectuated the 2008 14 15 Remand Order. (A.R. 451.) On April 6, 2009, plaintiff testified at a 16 hearing before Administrative Law Judge Joseph D. Schloss (the “ALJ”). 17 (A.R. 416-29.) On July 2, 2009, the ALJ denied plaintiff’s application. 18 (A.R. 393-99.) 19 SUMMARY OF ADMINISTRATIVE DECISION 20 21 22 The ALJ found that plaintiff did not engage in substantial gainful 23 activity from August 1, 2001, the alleged onset date, through September 24 30, 2008, the date last insured.2 (A.R. 395.) The ALJ determined that 25 26 27 28 2 Plaintiff alleges, and seeks benefits for, a closed period of disability from August 1, 2001, through June 1, 2004. (Joint Stipulation at 14; A.R. 418.) In his decision, however, the ALJ analyzed a period of disability from August 1, 2001 through September 30, 2008. (A.R. 393-99.) The Court will only focus on the closed 3 1 plaintiff had a severe musculoskeletal impairment. (Id.) The 2 impairment did not meet or equal any of the impairments listed in 20 3 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 396.) 4 5 6 The ALJ determined that plaintiff had the residual functional capacity (“RFC”) to: 7 8 perform light work as defined in 20 CFR 404.1567(b) except 9 lifting and/or carrying more than 20 pounds occasionally and 10 10 pounds frequently with no significant limitations in his 11 ability to stand, walk or sit. 12 work requiring the use of ladders, ropes, or scaffolds, work 13 requiring the use of vibratory tools, work at unprotected 14 heights and not [sic] requiring more than occasional crawling 15 and kneeling. There are no restrictions on bending, stooping 16 or crouching. There are no mental limitations. [Plaintiff] is precluded from 17 18 (A.R. 396.) 19 20 The ALJ found that plaintiff was unable to perform his past 21 relevant work. (A.R. 398.) Having considered 22 education, work experience, and RFC, and in reliance on testimony from 23 the vocational expert, the ALJ found that jobs existed in the national 24 economy that plaintiff could have performed, including jobs as a bench 25 assembler, hand packager/inspector, and cashier II. 26 27 28 period of disability alleged by plaintiff. 4 plaintiff’s age, (A.R. 398-99.) 1 Accordingly, the ALJ concluded that plaintiff was not disabled, as 2 defined in the Social Security Act, from August 1, 2001, through 3 September 30, 2008.3 (A.R. 399.) 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's 8 decision to determine whether it is free from legal error and supported 9 by substantial evidence in the record as a whole. Orn v. Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). 11 evidence as a reasonable mind might accept as adequate to support a 12 conclusion.’” 13 not necessarily a preponderance.” 14 873 (9th Cir. 2003)(citation omitted). Id. Substantial evidence is “‘such relevant The “evidence must be more than a mere scintilla but Connett v. Barnhart, 340 F.3d 871, 15 16 Although this Court cannot substitute its discretion for that of 17 the Commissioner, the Court nonetheless must review the record as a 18 whole, “weighing both the evidence that supports and the evidence that 19 detracts from the [Commissioner’s] conclusion.” 20 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 21 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 22 responsible for determining credibility, resolving conflicts in medical 23 testimony, and for resolving ambiguities.” 24 1035, 1039-40 (9th Cir. 1995). 25 support either a grant or a denial, [a federal court] may not substitute 26 [its] judgment for the ALJ’s.” Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d “Where the evidence as a whole can Bray v. Comm’r of Soc. Sec. Admin., 554 27 3 28 As discussed in Note 2, supra, the correct, closed period of disability is August 1, 2001, through June 1, 2004. 5 1 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation 2 omitted). 3 The Court will uphold the Commissioner’s decision when the evidence 4 5 is susceptible to more than one rational interpretation. Tommasetti v. 6 Astrue, 553 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 7 676, 679 (9th Cir. 2005); see also Batson v. Comm’r of Soc. Sec. Admin., 8 359 F.3d 1190, 1193 (9th Cir. 2004)(“if evidence exists to support more 9 than one rational interpretation, we must defer to the Commissioner’s 10 decision”). However, the Court may review only the reasons stated by 11 the ALJ in his decision “and may not affirm the ALJ on a ground upon 12 which he did not rely.” 13 F.3d at 874. 14 it is based on harmless error, which exists only when it is “clear from 15 the record that an ALJ’s error was ‘inconsequential to the ultimate 16 nondisability determination.’” 17 880, 885 (9th Cir. 2006)(quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 18 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d 19 at 679. Orn, 495 F.3d at 630; see also Connett, 340 The Court will not reverse the Commissioner’s decision if Robbins v. Soc. Sec. Admin., 466 F.3d 20 21 DISCUSSION 22 23 24 I. The ALJ’s Finding Regarding The Credibility Of Plaintiff’s Pain Testimony Is Reversed. 25 26 Plaintiff alleges that the ALJ failed to properly consider his 27 subjective complaints regarding his pain and symptoms in assessing his 28 credibility. (Joint Stipulation at 4.) 6 For the reasons set forth 1 below, the Court agrees. 2 3 Once a disability claimant produces evidence of an underlying 4 physical impairment that is reasonably likely to be the source of his 5 subjective symptom(s), all subjective testimony as to the severity of 6 the symptoms must be considered. 7 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 8 2001)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining how pain 9 and other symptoms are evaluated). Moisa v. Barnhart, 367 F.3d 882, 885 Moreover, “unless an ALJ makes a 10 finding of malingering based on affirmative evidence thereof, he or she 11 may only find an applicant not credible by making specific findings as 12 to credibility and stating clear and convincing reasons for each.” 13 Robbins, 466 F.3d at 883. 14 be “sufficiently specific” to allow a reviewing court to conclude that 15 the ALJ rejected the claimant’s testimony on permissible grounds and did 16 not arbitrarily discredit the claimant’s testimony. 17 885. Further, the ALJ’s credibility findings must Moisa, 367 F.3d at 18 19 This is the third time this issue has been raised. In the 2006 20 Remand Order, the Court instructed the Commissioner, on remand, to 21 further consider not only plaintiff’s back pain but also his other 22 alleged symptoms, which include, without limitation, alleged pain, 23 stiffness, muscle spasms, numbness in his left leg and foot (and 24 occasionally in his right leg), and pain when walking, which required 25 him to walk hunched over. 26 169, 183.) 27 specific order that this be done. 28 each of plaintiff’s claimed limitations and the extent, if any, to which (A.R. 299; see, e.g., A.R. 126, 132, 141, ALJ Belcher failed to do this, notwithstanding the Court’s ALJ Belcher should have addressed 7 1 they impacted 2 disability. his ability to work during his alleged period of ALJ Belcher’s failure to do so constituted error. 3 4 In the 2008 Remand Order, the Court again instructed the 5 Commissioner, on remand, to “specify, based on substantial evidence of 6 record, which allegations of pain and/or other symptoms he finds to be 7 not credible.” 8 suffered from a back impairment during the period of disability that 9 could have caused pain and symptoms such as those he alleges, the Court 10 ordered the Commissioner to provide clear and convincing reasons, based 11 upon substantial evidence in the record, for rejecting plaintiff’s 12 testimony. 13 convincing reasons based on substantial evidence. (A.R. 448.) (Id.) Because it was undisputed that plaintiff Yet again, the ALJ failed to provide clear and 14 15 The ALJ states the following reasons for rejecting plaintiff’s 16 testimony regarding his pain and symptoms: 17 objective medical evidence; (2) plaintiff’s testimony is inconsistent 18 with the facts in the record; (3) plaintiff has a poor work history; and 19 (4) plaintiff’s medication dosage would not cause adverse side effects. 20 (A.R. 397-98.) 21 exclusively on the opinion of Dr. Arthur Lorber, a medical expert. 22 (A.R. 396-97.) 23 reasons based on substantial evidence as required. (1) it is not supported by In citing these reasons, the ALJ appears to rely almost None of these reasons constitute clear and convincing 24 25 It is undisputed that plaintiff had a back impairment that could 26 have caused the type and severity of pain complained of by plaintiff 27 during his alleged closed period of disability, and there is no finding 28 by the ALJ that plaintiff was malingering. 8 Plaintiff’s medical records 1 reflect that plaintiff injured his back in August 2001, and underwent a 2 lumbar laminectomy on November 26, 2001. 3 surgery and throughout the period of disability, plaintiff continuously 4 reported back pain and was prescribed pain medication. (See, e.g., A.R. 5 116, 122, 160.) 6 medical evidence to support plaintiff’s pain testimony, neither his 7 treating physicians nor the medical experts thought that plaintiff was 8 malingering. 9 acknowledged and treated the pain (see, e.g., A.R. 168, 170, 173), and 10 some recommended additional surgery (A.R. 122, 173). Indeed, two of the 11 medical experts acknowledged in their testimony that it is possible for 12 plaintiff to have been experiencing significant levels of pain. 13 219, 378-79.) 14 which by itself cannot discredit plaintiff’s pain testimony –- there is 15 a consensus that the severity of pain allegedly experienced by plaintiff 16 is possible. (A.R. 101-102.) After the Although plaintiff’s doctors found little objective To the contrary, plaintiff’s treating physicians all (A.R. Thus, despite the lack of objective medical evidence -– See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 17 18 The ALJ’s remaining credibility findings are equally unavailing. 19 The ALJ asserts that plaintiff’s testimony is inconsistent with the 20 facts. 21 rely on factors such as inconsistencies between a claimant’s testimony 22 and the facts. 23 2002). 24 First, the ALJ implied that plaintiff lied about the advice he received 25 from his treating physician, Dr. H. Dhillon. 26 is correct that Dr. Dhillon’s treatment notes do not contain an express 27 recommendation 28 substantial Indisputably, in evaluating credibility, an ALJ is entitled to Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. Here, however, the evidence does not point to inconsistencies. for evidence additional that surgery, plaintiff 9 is (A.R. 397.) such lying. an While the ALJ omission To the is not contrary, 1 plaintiff’s treatment notes reflect that he has reported to two other 2 physicians that Dr. Dhillon recommended a lumbar fusion. 3 351.) 4 indicate that plaintiff told Dr. Dhillon that “[h]e can’t do surgery,” 5 which suggests Dr. Dhillon recommended surgery and is consistent with 6 plaintiff’s testimony that he did not want additional surgery due to the 7 lack of guaranteed success. 8 that the record failed to support plaintiff’s assertion that “he 9 reclined and spent most of his time using a heat pack.” (A.R. 173, Moreover, Dr. Dhillon’s treatment notes from April 24, 2003, (A.R. 293, 361.) Second, the ALJ stated (A.R. 397.) 10 Nothing in the record, however, remotely suggests that plaintiff is 11 lying about his daily activities. 12 and 13 treatment notes reflect that plaintiff had “heat marks.” 14 361.) -- consistently with No person testified to the contrary, plaintiff’s testimony -- Dr. Dhillon’s (A.R. 235, 15 16 Plaintiff’s work history also does not constitute a clear and 17 convincing reason for rejecting plaintiff’s pain testimony. A poor work 18 record may negatively affect a claimant’s credibility. Thomas, 278 F.3d 19 at 20 consistency, the record reflects that plaintiff worked to some degree 21 most of the years prior to his period of disability, and he has engaged 22 in some level of work after his period of disability. 23 such, 24 consideration, in this instance, it is not a clear and convincing reason 25 for rejecting plaintiff’s credibility. 958-59. while While a Plaintiff’s plaintiff’s work spotty history work is history not a model (A.R. 456.) may be a of As valid 26 27 Finally, the ALJ’s finding that plaintiff’s testimony regarding the 28 side effects of his medications is not credible is also without merit. 10 1 The ALJ based his finding entirely on Dr. Lorber’s testimony that he 2 could not anticipate any adverse side effects from the dosage of Vicodin 3 that plaintiff was allegedly taking in January 2004.4 4 if Dr. Lorber’s testimony was sufficient by itself, it was based on a 5 lower dosage amount than plaintiff was taking during the period of 6 disability. 7 plaintiff’s 8 plaintiff was taking one to one and a half tablets of Vicodin per day. 9 (A.R. 423.) Dr. Lorber treating testified physician, Dr. that, David as of H. (A.R. 397.) January Thio, 15, reported Even 2004, that The Court cannot find this treatment note in the record. 10 Instead, contrary to the ALJ’s assertion that “[e]arly treatment records 11 do not indicate how often [plaintiff] was taking Vicodin” (A.R. 397), 12 the record reflects that plaintiff was taking three to four tablets of 13 Vicodin through the alleged period of disability. 14 was not until January 17, 2005, after the alleged period of disability, 15 that plaintiff reduced his dosage. 16 finds that the ALJ failed to properly address and dismiss plaintiff’s 17 side effects. (A.R. 349.) (A.R. 184, 351.) It As such, the Court also 18 19 Accordingly, as there is no clear and convincing reason to find 20 plaintiff’s pain testimony 21 not credible, the ALJ erred when he discredited plaintiff’s pain. 22 23 II. Reversal And Remand For The Payment Of Benefits Is Appropriate. 24 The Court concludes that there is no reason to remand this case for 25 26 further administrative proceedings. 27 4 28 The ALJ again fails to reference plaintiffs’ complaints about Neurontin. (A.R. 123.) 11 1 In the Ninth Circuit, courts have the discretion to “credit as 2 true” the testimony of claimants when the ALJ has failed to provide 3 legally sufficient reasons for rejecting such testimony. 4 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Harman v. Apfel, 5 211 F.3d 1172, 1179 (9th Cir. 2000); Swenson v. Sullivan, 876 F.2d 683, 6 689 (9th Cir. 1989). 7 Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988), the Ninth Circuit 8 stated that: See, e.g., Specifically, in Varney v. Sec’y of Health and 9 10 [W]here there are no outstanding issues that must be resolved 11 before a proper disability determination can be made, and 12 where it is clear from the administrative record that the ALJ 13 would be required to award benefits if the claimant’s excess 14 pain testimony were credited, we will not remand solely to 15 allow 16 testimony. 17 practice and take that testimony to be established as true. the ALJ to make specific findings regarding that Rather, we will follow the Eleventh Circuit’s 18 19 See also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)(accepting 20 plaintiff’s testimony as true and granting payment for benefits). 21 principle governs here. That 22 23 This case was remanded twice, once in 2006 and again in 2008, 24 based, in part, on errors in the consideration of plaintiff’s 25 credibility and pain testimony. 26 Commissioner has attempted and failed to provide clear and convincing 27 reasons, based upon substantial evidence, for rejecting plaintiff’s pain 28 testimony. Thus, this is the third time that the In Benecke, the Ninth Circuit emphasized that “[a]llowing 12 1 the Commissioner to decide the issue again would create an unfair ‘heads 2 we 3 adjudication,” and unfairly “delay much needed income for claimants who 4 are unable to work and are entitled to benefits.” 5 Moreover, in Moisa, after finding that reversal was justified due to the 6 ALJ’s commission of clear error in rejecting the claimant’s pain 7 testimony, the Ninth Circuit concluded that a remand for an award of 8 benefits, rather than for further proceedings on the credibility issue, 9 was appropriate. win; tails, let’s play again’ 367 F.3d at 887. system of disability benefits 379 F.3d at 595. The Ninth Circuit reasoned that 10 “[t]he Commissioner, having lost this appeal, should not have another 11 opportunity to show that [plaintiff] is not credible any more than 12 [plaintiff], had he lost, should have an opportunity for remand and 13 further proceedings to establish his credibility.” Id. 14 15 If plaintiff’s pain testimony is credited as true, which the Court 16 believes is appropriate under the circumstances, the record shows that 17 plaintiff is disabled. 18 plaintiff were required to have unscheduled breaks throughout the day, 19 there would be no jobs that exist in the national economy that he could 20 perform. 21 two 22 wouldn’t be any work available.” (A.R. 242.) Sandra Fioretti testified 23 that, if an individual needed to recline four hours out of a work week 24 to rest his back, “it would erode the labor market completely,” and such 25 jobs “would be very rare.” 26 an individual required an additional four hours of breaks in a work 27 week, he would not stay employed. to Three vocational experts testified that, if Corinne J. Porter testified that, if an individual required three thirty-minute unscheduled (A.R. 387-88.) breaks 13 day, “[t]here Luis Mas testified that, if (A.R. 428.) 28 each 1 Thus, the Court finds that plaintiff was disabled throughout the 2 relevant closed period, and reversal and remand for an award of benefits 3 is warranted. 4 5 CONCLUSION 6 7 Accordingly, for the reasons stated above, the Commissioner’s 8 decision is REVERSED, and this case is remanded to the Commissioner for 9 the payment of benefits to plaintiff. 10 Judgement shall be entered in favor of plaintiff, and this action shall be dismissed with prejudice. 11 12 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 13 copies of this Memorandum Opinion and Order and the Judgment on counsel 14 for plaintiff and for defendant. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: September 14, 2010 19 20 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 14
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