Victor Medina v. Michael J Astrue, No. 5:2010cv00038 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Victor Medina v. Michael J Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 VICTOR MEDINA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-00038-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on January 19, 2010, seeking review of 19 the denial by the Social Security Commissioner (the “Commissioner”) of 20 plaintiff’s application for a period of disability, disability insurance 21 benefits (“DIB”), and social security income (“SSI”). 22 2011, the parties consented to proceed before the undersigned United 23 States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).1 24 filed a Joint Stipulation on July 21, 2010, in which: 25 an order reversing the Commissioner’s decision and remanding this case 26 for the payment of benefits or, On January 7, The parties plaintiff seeks alternatively, for further 27 1 28 The parties initially consented to proceed before United States Magistrate Judge Rosalyn M. Chapman. Due to Judge Chapman’s retirement, however, the case was transferred to the undersigned United States Magistrate Judge. Dockets.Justia.com 1 administrative 2 Commissioner’s decision be affirmed. 3 Joint Stipulation under submission without oral argument. proceedings; and defendant requests that the The Court has taken the parties’ 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 Plaintiff filed an application for a period of disability, DIB, and 8 SSI on November 27, 2007. 9 Plaintiff claims to have been disabled since February 17, 2005, due to 10 bipolar disorder, asthma, and a torn anterior-cruciate ligament (“ACL”) 11 on his left knee.2 12 experience as an assembler and laborer.3 (Administrative Record (“A.R.”) 110-20.) (A.R. 110, 128.) Plaintiff has past relevant work (A.R. 13.) 13 14 After the Commissioner denied plaintiff’s claim initially and upon 15 reconsideration (A.R. 47-51, 55-60), plaintiff requested a hearing 16 (A.R. 62). 17 appeared and testified at a hearing before Administrative Law Judge 18 Jesse J. Pease (the “ALJ”). 19 Scott also testified. 20 plaintiff’s claim (A.R. 8-15), and the Appeals Council subsequently 21 denied plaintiff’s request for review of the ALJ’s decision (A.R. 1-3). 22 That decision is now at issue in this action On June 8, 2009, plaintiff, who was represented by counsel, (Id.) (A.R. 16-42.) Vocational expert Troy L. On September 15, 2009, the ALJ denied 23 24 25 26 27 28 2 It appears that plaintiff also has hepatitis gastroesophageal disease (“GERD”). (see, e.g., A.R. 10.) 3 C and Although not discussed in the ALJ’s decision, it appears that plaintiff also had past relevant work experience as a janitor and tow truck driver. (See, e.g., A.R. 35-36, 129.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since February 17, 2005, the alleged onset date of plaintiff’s 5 claimed disability. 6 torn left ACL and bipolar disorder are severe impairments; and his 7 hepatitis C, GERD, and history of asthma are “non-severe” impairments. 8 (Id.) 9 impairment or combination of impairments that meets or equals in 10 severity any impairment listed in 20 C.F.R. Part 404, Subpart P, 11 Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1526, 416.920(d), 416.925, and 12 416.926). The ALJ (A.R. 10.) also The ALJ determined that: determined that plaintiff does plaintiff’s not have an (A.R. 10-11.) 13 14 After reviewing the record, the ALJ determined that plaintiff has 15 the residual functional capacity (“RFC”) to perform a limited range of 16 light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (A.R. 17 11.) 18 hours 19 occasionally perform all other postural activities.” 20 also determined that plaintiff “should avoid working around hazardous 21 machines and at heights” and “[m]entally,[plaintiff] can perform simple 22 repetitive tasks with no intense contact with others.” Specifically, the ALJ determined that plaintiff can “stand for 2 of an 8-hour workday, frequently balance and stoop, (Id.) and The ALJ (Id.) 23 24 The ALJ concluded that plaintiff was unable to perform his past 25 relevant work. 26 education, work experience, RFC, as well as the testimony of the 27 vocational expert, the ALJ found that jobs exist in the national economy 28 that plaintiff could perform, including those of parking lot attendant, (A.R. 13.) However, having considered plaintiff’s age, 3 1 electronics 2 Accordingly, the ALJ concluded that plaintiff was not disabled within 3 the meaning of the Social Security Act from February 17, 2005, through 4 the date of his decision. assembler, and sewing machine operator. (A.R. 14.) (A.R. 8, 14-15.) 5 6 STANDARD OF REVIEW 7 8 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 9 decision to determine whether it is free from legal error and supported 10 by substantial evidence in the record as a whole. 11 F.3d 625, 630 (9th Cir. 2007). 12 evidence as a reasonable mind might accept as adequate to support a 13 conclusion.’” 14 a mere scintilla but not necessarily a preponderance.” 15 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 16 record can constitute substantial evidence, only those ‘reasonably drawn 17 from the record’ will suffice.” 18 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 19 20 Although this Court cannot substitute its discretion for that of 21 the Commissioner, the Court nonetheless must review the record as a 22 whole, “weighing both the evidence that supports and the evidence that 23 detracts from the [Commissioner’s] conclusion.” 24 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 25 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 26 responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities.” 28 1035, 1039 (9th Cir. 1995). 4 Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 1 The Court will uphold the Commissioner’s decision when the evidence 2 is susceptible to more than one rational interpretation. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision “and may not 5 affirm the ALJ on a ground upon which he did not rely.” 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner’s decision if it is based on harmless error, which 8 exists only when it is “clear from the record that an ALJ’s error was 9 ‘inconsequential to the ultimate nondisability determination.’” Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 12 at 679. Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff makes the following claims: (1) the ALJ did not consider 17 plaintiff’s credibility properly; (2) the ALJ failed to consider the 18 statement of lay witness Martin Ramirez; (3) the ALJ did not consider 19 the statement of plaintiff’s physician properly; and (4) the ALJ did not 20 consider plaintiff’s ability to do “other” work properly.4 21 Stipulation (“Joint Stip.”) at 1-23.) 22 /// 23 /// 24 /// 25 /// (Joint 26 27 28 4 Plaintiff initially raised another claim –- to wit, that the ALJ did not address whether plaintiff met a Listing properly –- however, plaintiff has since “withdrawn this argument.” (Joint Stip. at 2-3.) 5 1 2 I. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff To Be Not Credible. 3 4 Once a disability claimant produces objective evidence of an 5 underlying impairment that is reasonably likely to be the source of his 6 subjective symptom(s), all subjective testimony as to the severity of 7 the symptoms must be considered. 8 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 9 1991)(en banc); see also 20 Moisa v. Barnhart, 367 F.3d 882, 885 C.F.R. §§ 404.1529(a), 416.929(a) 10 (explaining how pain and other symptoms are evaluated). 11 ALJ makes a finding of malingering based on affirmative evidence 12 thereof, he or she may only find an applicant not credible by making 13 specific findings as to credibility and stating clear and convincing 14 reasons for each." 15 considered in weighing a claimant’s credibility include: 16 claimant’s reputation for truthfulness; (2) inconsistencies either in 17 the claimant’s testimony or between the claimant’s testimony and his 18 conduct; (3) the claimant’s daily activities; (4) the claimant’s work 19 record; and (5) testimony from physicians and third parties concerning 20 the nature, severity, and effect of the symptoms of which the claimant 21 complains. 22 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). Robbins, 466 F.3d at 883. “[U]nless an The factors to be (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 23 24 The ALJ found that plaintiff’s “medically determinable impairments 25 could reasonably be expected to cause the alleged symptoms.” (A.R. 12.) 26 Further, 27 Accordingly, the ALJ’s reason for rejecting plaintiff’s credibility must 28 be “clear and convincing.” the ALJ cited no evidence 6 of malingering by plaintiff. 1 At the hearing, plaintiff testified that he can sit for 20 or 30 2 minutes before his knee hurts him, he can stand for 45 minutes before it 3 starts to swell, and cold weather causes him to experience knee pain. 4 (A.R. 22.) 5 time or “climb because [his knee] starts to . . . make funny noises.” 6 (A.R. 27.) 7 not too high. 8 plaintiff testified that he is “nervous,” “depressed at times,” has 9 trouble He also testified that he cannot walk for long periods of Plaintiff testified that he could climb a ladder, if it were (Id.) concentrating, With respect to his mental health problems, “has thoughts of suicide,” and has “manic 10 phase[s].”5 11 medication helps, “it doesn’t . . . calm [his] anxiety or . . . calm 12 [him] down. (A.R. 20, 30.) Plaintiff also testified that, while his It just sedates [him].”6 (A.R. 21.) 13 14 In his decision, the ALJ stated that plaintiff’s “statements 15 concerning the intensity, persistence and limiting effects of [his 16 alleged] symptoms are not credible to the extent they are inconsistent 17 with the [RFC] assessment.” (A.R. 12.) In determining plaintiff’s RFC, 18 however, the ALJ failed to provide any clear and convincing reasons for 19 rejecting plaintiff’s testimony regarding the nature and extent of his 20 physical and mental limitations.7 Rather, the ALJ merely summarized 21 22 23 24 25 26 27 28 5 Plaintiff testified that, while in a manic phase, he gets agitated, “won’t sleep at all,” feels funny and weird, and will lock himself in a room. (A.R. 29-30.) 6 Plaintiff also testified that his medications make him drowsy and sleepy. (A.R. 28.) 7 Although the ALJ’s RFC assessment provides for some physical and mental limitations and restrictions, it does not encompass all of plaintiff’s alleged limitations. For example, plaintiff alleged greater sit-stand limitations than the two hour standing limitation contained in the ALJ’s RFC assessment. 7 1 plaintiff’s daily activities, plaintiff’s criminal record, the medical 2 record, and the medical opinions. The ALJ’s summary and his boilerplate 3 statement do not constitute clear and convincing reasons, as required, 4 for finding plaintiff’s testimony to be not credible. Further, they are 5 not sufficiently specific to allow this Court to determine whether the 6 ALJ rejected plaintiff’s testimony on permissible grounds. 7 8 Moreover, although defendant attempts to manufacture reasons from 9 the ALJ’s various summaries to discredit plaintiff, the Court cannot 10 engage in post hac rationalizations. 11 (noting that the court may “review only the reasons provided by the ALJ 12 in the disability determination and may not affirm the ALJ on a ground 13 upon which he did not rely”); see also Connett, 340 F.3d at 874. 14 Accordingly, because the ALJ did not give clear and convincing reasons 15 for discrediting plaintiff’s testimony, the ALJ committed error. See, e.g., Orn, 395 F.2d at 630 16 17 II. 18 The ALJ Erred By Failing To Consider The Statement Of Lay Witness Martin Ramirez. 19 20 In evaluating the credibility of a claimant’s assertions of 21 functional 22 reported observations of the claimant. 23 “[F]riends and family members in a position to observe a claimant’s 24 symptoms and daily activities are competent to testify as to [the 25 claimant’s] condition.” 26 Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4) (“[W]e may also 27 use 28 impairment(s). . . . limitations, evidence from the ALJ must consider the lay witnesses’ Stout, 454 F.3d at 1053. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th other sources to show the severity of your Other sources include, but are not limited 8 1 to . . . spouses, parents and other care-givers, siblings, other 2 relatives, friends, neighbors, and clergy.”). “If an ALJ disregards the 3 testimony of a lay witness, the ALJ must provide reasons ‘that are 4 germane to each witness.’” 5 Cir. 2009)(citation omitted). 6 witness” must be specific. 7 “the ALJ, not the district court, is required to provide specific 8 reasons for rejecting lay testimony”). 9 lies in a failure to properly discuss competent lay testimony favorable 10 to the claimant, a reviewing court cannot consider the error harmless 11 unless it can confidently conclude that no reasonable ALJ, when fully 12 crediting the testimony, could have reached a different disability 13 determination.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Further, the reasons “germane to each Stout, 454 F.3d at 1054 (explaining that Lastly, “where the ALJ’s error Id. at 1056. 14 15 In this case, the ALJ erred when he failed to discuss the lay 16 witness statement of plaintiff’s brother, Martin Ramirez. 17 disregards a lay witness’s testimony without comment, the Court applies 18 a 19 plaintiff’s brother stated, in pertinent part, that plaintiff has 20 difficulties 21 completing tasks, concentration, and following instructions.8 22 156.) 23 limits him [from doing] certain tasks and his bipolar disorder keeps him harmless error with analysis. squatting, Stout, 454 kneeling, F.3d stair at When an ALJ 1054-56. climbing, Here, memory, (A.R. He noted that plaintiff’s “torn ligament [in his left knee] . . . 24 25 26 27 28 8 While plaintiff concedes that the ALJ’s postural restrictions in his RFC assessment subsume the lay witness statement regarding plaintiff’s difficulties with squatting, kneeling, and stair climbing (Joint Stip. at 13), the Court is not convinced that no reasonable ALJ could have reached a different, possibly more restrictive, determination, if Martin Ramirez’s statement were considered and credited. 9 1 from focusing on what . . . he has to do or accomplish overall.” 2 154, 3 distracted” 4 plaintiff cannot handle stress –- noting that plaintiff “panics and gets 5 agitated” 6 accustomed” to changes in routine. 7 the 8 restrictions in his RFC assessment of plaintiff, the Court cannot 9 confidently conclude that no reasonable ALJ, when fully crediting the 158.) ALJ Ramirez when and given that included 10 lay 11 determination. witness also oral “[i]t certain statement, stated that plaintiff instruction. takes a while for (A.R. 157.) mental could (Id.) have and a He “easily stated [plaintiff] to that get While it is true that physical reached becomes (A.R. limitations different and disability Accordingly, the ALJ’s error was not harmless. 12 13 14 III. The ALJ Did Not Commit Reversible Error With Respect To His Consideration Of The Statement Of Plaintiff’s Physician. 15 16 The determination of disability is reserved to the Commissioner. 17 20 C.F.R. §§ 404.1527(e), 416.927(e). 18 “administrative determination of how an impairment, in relation to 19 education, age, technological, economic, and social factors, affects 20 ability to engage in gainful activity.” McLeod v. Astrue, 2010 U.S. 21 App. LEXIS 25617, *2 (9th Cir. 2010). Accordingly, a finding by a 22 medical source that a claimant is “disabled” or “unable to work” is not 23 binding on the ALJ with respect to the ultimate determination of 24 disability. 25 Tonapetyan v. Halter, 242 F.3d 1144 (9th Cir. 2001). 26 rejection of a medical source’s “opinion on ability to perform any 27 remunerative work does not by itself trigger a duty to contact the 28 physician for more explanation.” 20 C.F.R. §§ A finding of disability is an 404.1527(6)(e)(1), 416.927(6)(e)(1); Further, the McLeod, 2010 U.S. App. LEXIS, at *610 1 *7. 2 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)(citation 3 omitted)(emphasis in original); see also Howard v. Barnhart, 341 F.3d 4 1006, 5 evidence). An ALJ must explain only why “significant probative evidence 6 has been rejected.” 7 citation omitted). Moreover, an ALJ “need not discuss all evidence presented to him.” 1012 (9th Cir. 2003)(ALJ need not discuss every piece of Vincent, 739 F.3d at 1395 (internal quotations and 8 9 The ALJ did not commit reversible error in failing to discuss the 10 “Certificate Of Disability” from plaintiff’s physician, Cris Sherman, 11 D.O. 12 not be able to perform his “regular duties” from August 25, 2008, to 13 November 25, 2008. (A.R. 403.) 14 was noted that plaintiff has an unstable knee and requires surgery 15 because of an ACL tear on his left knee. 16 a note requesting expedited funding to allow for the elective procedure. 17 (Id.) 18 perform his “regular duties” for three months, Dr. Sherman’s finding is 19 not binding on the ALJ, because it pertains to the determination of 20 disability 21 Moreover, an ALJ is not required to discuss every piece of evidence and 22 the rejection of an opinion regarding disability does not by itself 23 trigger a duty to re-contact the physician. 24 occurred. The certificate stated, in pertinent part, that plaintiff would In the limitations/remarks section, it (Id.) In addition, there was Here, although Dr. Sherman opined that plaintiff could not –- a matter reserved exclusively to the Commissioner. Accordingly, no error 25 26 However, even assuming arguendo that the ALJ committed error(s) –- 27 in failing to discuss the “Certificate Of Disability” and/or in failing 28 to develop the record further –- any error committed was harmless. 11 In 1 pertinent part, Dr. Sherman opined that plaintiff would be disabled for 2 only three months, which falls far short of the 12 month durational 3 requirement necessary for an impairment to be considered disabling. 4 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. 5 pointed out by defendant, there is no evidence of record indicating a 6 disabling impairment for the requisite 12 months. 7 reversible error occurred. §§ 404.1509, 416.909. 42 Further, as Accordingly, no 8 9 IV. 10 The ALJ Must Review And Reconsider Plaintiff’s Ability To Perform “Other Work.” 11 12 Based on the foregoing, there are several matters that the ALJ 13 needs to review and reconsider on remand. 14 conclusion regarding plaintiff’s capacity to perform “other work” may 15 change. 16 to wit, that the ALJ erred in determining that plaintiff can perform 17 work other than his past relevant work. 18 reconsider this issue, the ALJ needs to reconsider both the testimony of 19 plaintiff and the statement of lay witness Martin Ramirez to assess 20 properly what weight, if any, this evidence has on the ALJ’s assessment 21 of plaintiff’s ability to perform “other work.” 22 plaintiff’s RFC may need to be reassessed, additional testimony from a 23 vocational expert likely will be required to determine whether plaintiff 24 can perform work other than his past relevant work. As a result, the ALJ’s Therefore, the Court does not reach plaintiff’s fourth claim, To properly review and Further, to the extent 25 26 V. Remand Is Required. 27 28 The decision whether to remand for further proceedings or order an 12 1 immediate award of benefits is within the district court’s discretion. 2 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 3 useful purpose would be served by further administrative proceedings, or 4 where the record has been fully developed, it is appropriate to exercise 5 this discretion to direct an immediate award of benefits. 6 (“[T]he decision of whether to remand for further proceedings turns upon 7 the likely utility of such proceedings.”). 8 outstanding issues that must be resolved before a determination of 9 disability can be made, and it is not clear from the record that the ALJ 10 would be required to find the claimant disabled if all the evidence were 11 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 12 13 Remand is the appropriate remedy to allow the ALJ the opportunity 14 to remedy the above-mentioned deficiencies and errors. 15 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 16 further proceedings is appropriate if enhancement of the record would be 17 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 18 (remand appropriate to remedy defects in the record). See, e.g., 19 20 On remand, the ALJ must correct the above-mentioned deficiencies 21 and errors. 22 testimony and if applicable, give clear and convincing reasons for 23 rejecting it. 24 they 25 regarding his observation of the nature and extent of plaintiff’s 26 alleged impairments and limitations. 27 and deficiencies, the ALJ may need to reassess plaintiff’s RFC, in which 28 case, additional testimony from a vocational expert likely will be exist, Specifically, the ALJ needs to reconsider plaintiff’s In addition, the ALJ must provide germane reasons, if for rejecting lay witness 13 Martin Ramirez’s statement After correcting the above errors 1 needed to determine what work, if any, plaintiff can perform. 2 3 CONCLUSION 4 5 Accordingly, for the reasons stated above, IT IS ORDERED that the 6 decision of the Commissioner is REVERSED, and this case is REMANDED for 7 further proceedings consistent with this Memorandum Opinion and Order. 8 9 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 10 copies of this Memorandum Opinion and Order and the Judgment on counsel 11 for plaintiff and for defendant. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: January 13, 2011 16 17 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 14
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