Ricky Renteria v. Michael J Astrue, No. 5:2010cv00768 - Document 13 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See order for details. (hr)
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Ricky Renteria v. Michael J Astrue Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICKY RENTERIA, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ 18 I. 19 ) Case No. EDCV 10-768 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) SUMMARY On May 24, 2010, plaintiff Ricky Renteria (“plaintiff”) filed a Complaint 20 seeking review of the Commissioner of Social Security’s denial of plaintiff’s 21 application for benefits. The parties have consented to proceed before a United 22 States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; June 7, 2010 Case Management Order ¶ 5. 27 /// 28 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum and Opinion and Order of Remand because the 4 Administrative Law Judge (“ALJ”) did not properly assess the credibility of 5 plaintiff’s subjective complaints. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On November 21, 2006, plaintiff filed an application for supplemental 9 security income benefits. (Administrative Record (“AR”) 138-40). Plaintiff 10 asserted that he became disabled on September 10, 2006, due to a lower back 11 injury, numbness in the right leg, and shortness of breath. (AR 138, 148). The 12 ALJ examined the medical record and heard testimony from plaintiff, who was 13 represented by counsel, on September 23, 2008. (AR 80-107). 14 On October 28, 2008, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 55-62). Specifically, the ALJ found: 16 (1) plaintiff suffered from the severe impairments of morbid obesity, sleep apnea, 17 and degenerative disc disease (AR 57); (2) plaintiff’s impairments, considered 18 singly or in combination, did not meet or medically equal one of the listed 19 impairments (AR 57); (3) plaintiff retained the residual functional capacity to 20 perform a limited range of light work1 (AR 58); (4) plaintiff could not perform his 21 past relevant work (AR 60); (5) there are jobs that exist in significant numbers in 22 the national economy that plaintiff could perform (AR 61); and (6) plaintiff’s 23 allegations regarding his limitations were not entirely credible (AR 59). 24 The Appeals Council denied plaintiff’s application for review. (AR 1-3). 25 26 1 Specifically, the ALJ determined that plaintiff “can lift and carry 20 pounds occasionally 27 and 10 pounds frequently. He can stand and walk for 2 hours out of an 8-hour work day, and he 28 can sit for 6 hours out of an 8-hour work day. He cannot work at unprotected heights or with dangerous machinery. He cannot balance, but he can occasionally climb, stoop, kneel, crouch, and crawl.” (AR 58). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 4 engage in any substantial gainful activity by reason of a medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of at least twelve 7 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 8 § 423(d)(1)(A)). The impairment must render the claimant incapable of 9 performing the work he previously performed and incapable of performing any 10 other substantial gainful employment that exists in the national economy. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 12 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 13 sequential evaluation process: 14 (1) 15 16 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 17 his ability to work? If not, the claimant is not disabled. If so, 18 proceed to step three. 19 (3) Does the claimant’s impairment, or combination of 20 impairments, meet or equal an impairment listed in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1? If so, the claimant is 22 disabled. If not, proceed to step four. 23 (4) Does the claimant possess the residual functional capacity to 24 perform his past relevant work? If so, the claimant is not 25 disabled. If not, proceed to step five. 26 (5) Does the claimant’s residual functional capacity, when 27 considered with the claimant’s age, education, and work 28 experience, allow him to adjust to other work that exists in 3 1 significant numbers in the national economy? If so, the 2 claimant is not disabled. If not, the claimant is disabled. 3 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 4 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden 5 of proof at steps one through four, and the Commissioner has the burden of proof 6 at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) 7 (citing Tackett, 180 F.3d at 1098); see also Burch, 400 F.3d at 679 (claimant 8 carries initial burden of proving disability). 9 10 B. Standard of Review Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of 11 benefits only if it is not supported by substantial evidence or if it is based on legal 12 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 13 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 14 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 16 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 17 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 18 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 19 To determine whether substantial evidence supports a finding, a court must 20 “‘consider the record as a whole, weighing both evidence that supports and 21 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 23 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 24 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 25 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 26 /// 27 /// 28 /// 4 1 IV. DISCUSSION 2 A. 3 The Court construes plaintiff’s argument that the ALJ failed “to adequately The ALJ Improperly Assessed Plaintiff’s Credibility. 4 consider the functional limitations imposed by [plaintiff’s] morbid obesity and 5 sleep apnea” (Plaintiff’s Motion at 8-10) as a contention that the ALJ improperly 6 evaluated the credibility of plaintiff’s subjective complaints. (See Defendant’s 7 Motion at 6-10) (arguing that the ALJ’s adverse credibility determination was 8 proper). Plaintiff’s argument is persuasive. 9 10 1. Pertinent Law “To determine whether a claimant’s testimony regarding subjective pain or 11 symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. 12 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “the ALJ must determine 13 whether the claimant has presented objective medical evidence of an underlying 14 impairment ‘which could reasonably be expected to produce the pain or other 15 symptoms alleged.’” Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 16 1991) (en banc)). 17 “Second, if the claimant meets this first test, and there is no evidence of 18 malingering, ‘the ALJ can reject the claimant’s testimony about the severity of 19 [his] symptoms only by offering specific, clear and convincing reasons for doing 20 so.’” Lingenfelter, 504 F.3d at 1036 (citations omitted). “In making a credibility 21 determination, the ALJ ‘must specifically identify what testimony is credible and 22 what testimony undermines the claimant's complaints.’” Greger v. Barnhart, 464 23 F.3d 968, 972 (9th Cir. 2006) (citation omitted). “The ALJ must cite the reasons 24 why the claimant’s testimony is unpersuasive.” Orn v. Astrue, 495 F.3d 625, 635 25 (9th Cir. 2007) (citation and quotation marks omitted). In weighing credibility, 26 the ALJ may consider factors including: the nature, location, onset, duration, 27 frequency, radiation, and intensity of any pain; precipitating and aggravating 28 factors (e.g., movement, activity, environmental conditions); type, dosage, 5 1 effectiveness, and adverse side effects of any pain medication; treatment, other 2 than medication, for relief of pain; functional restrictions; the claimant’s daily 3 activities; and “ordinary techniques of credibility evaluation.” Bunnell, 947 F.2d 4 at 346 (citing Social Security Ruling (“SSR”) 88-132; quotation marks omitted). 5 The ALJ may consider (a) inconsistencies or discrepancies in a claimant’s 6 statements; (b) inconsistencies between a claimant’s statements and activities; 7 (c) exaggerated complaints; and (d) an unexplained failure to seek treatment. 8 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If properly supported, 9 the ALJ’s credibility determination is entitled to “great deference.” See Green v. 10 Heckler, 803 F.2d 528, 532 (9th Cir. 1986). 11 12 2. Analysis In this case, the ALJ found that plaintiff’s “medically determinable 13 impairments could reasonably be expected to produce the alleged symptoms; 14 however, [plaintiff’s] statements concerning the intensity, persistence and limiting 15 effects of these symptoms are not credible to the extent they are inconsistent with 16 the . . . residual functional capacity assessment.” (AR 59). The ALJ provided 17 several reasons for discounting plaintiff’s credibility. The Court finds none of 18 them to be clear and convincing. 19 First, the ALJ concluded that the objective medical evidence did not support 20 the extent of plaintiff’s subjective limitations. (AR 59-60). An ALJ may consider 21 lack of medical evidence supporting the degree of limitations, but it “cannot form 22 the sole basis for discounting” subjective symptom testimony. Burch, 400 F.3d at 23 681. As discussed below, the ALJ provided no other valid reason for discounting 24 plaintiff’s testimony. Thus, to the extent the ALJ correctly concluded that there 25 26 2 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 27 F.2d 1273, 1275 n.1 (9th Cir. 1990). Such rulings reflect the official interpretation of the Social 28 Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007) (citing SSR 00-4p). 6 1 was a lack of objective medical evidence to substantiate plaintiff’s claims, this 2 reason does not alone suffice to discount her credibility. 3 Next, the ALJ observed that plaintiff stated he “requires a walker in order to 4 ambulate,” but no physician had prescribed a walker and plaintiff was using a 5 borrowed one. (AR 60). In addition, the ALJ noted that the consultative examiner 6 “reported that [plaintiff] could ambulate without the walker.” (AR 59 (citing 7 Exhibit 4F [AR 248-53])). Plaintiff testified that he began using the walker in 8 2006 and relied on it whenever he needed to walk more than about twenty paces. 9 (AR 89-90, 100). He stated that he needed the walker because he has difficulty 10 holding himself up, and the walker helps relieve back pain and leg weakness when 11 he stands. (AR 90, 99). Plaintiff testified that, unassisted, he can stand “barely 12 even five” minutes. (AR 100). One treating physician noted that plaintiff 13 “requires [a] walker to ambulate.” (AR 18, 274).3 That plaintiff borrowed a 14 walker, instead of obtaining and presumably paying for a prescribed one, does not 15 clearly and convincingly undermine his testimony concerning his reliance on the 16 walker. Similarly, the consultative examiner’s observation that “[n]o assistive 17 device is required for ambulation across the room” (AR 252) does not necessarily 18 conflict with plaintiff’s testimony that he depends on a walker whenever he walks 19 more than about twenty paces, and does not suffice to undermine his credibility. 20 Next, the ALJ faulted plaintiff for “fail[ing] to follow the advice of his 21 treating sources, who have frequently urged [plaintiff] to exercise more and make 22 dietary modifications.” (AR 60). As support for this assertion, the ALJ cites a 23 treatment note dated December 1, 2006, by Dr. Martha Melendez, stating that she 24 has “explained to him that the best way to treat his low back pain is by gradual 25 weight loss, and the patient may actually even be a candidate for bariatric surgery. 26 27 28 3 This evidence, which was not before the ALJ but was submitted to the Appeals Council, is part of the Administrative Record for purposes of the Court’s analysis. See Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993). 7 1 At this point, the patient feels that he has tried everything he can for weight loss 2 . . . .” (AR 228). This evidence does not demonstrate that plaintiff has failed to 3 follow a prescribed weight loss regimen. In fact, as late as August 30, 2008 – less 4 than one month before the hearing – a physician noted that plaintiff “has not had 5 [a weight] loss program [with] a doctor.” (AR 270). At the hearing, plaintiff 6 testified that he was told he was not a candidate for weight loss surgery and that he 7 had recently begun taking a medication “for weight control for people that are 8 morbidly obese.” (AR 91). The ALJ’s statement plaintiff “has failed to follow the 9 advice of his treating sources” is not supported by the evidence and therefore does 10 not malign plaintiff’s credibility. See also Orn, 495 F.3d at 636-37 (noting that 11 Social Security Ruling 02-01p “precludes the ALJ from considering the effect of 12 any failure to follow treatment for obesity” unless the claimant has been found 13 disabled because of obesity and there is “clear evidence that treatment would be 14 successful”). 15 Finally, the ALJ made similar observations regarding plaintiff’s alleged 16 failure to follow prescribed treatments for sleep apnea and incontinence. (AR 60). 17 Plaintiff testified that although a continuous positive airway pressure (“CPAP”) 18 machine improved his breathing, he “wasn’t getting any sleep at all” because of 19 the machine’s noise and was “really sleepy” during the day. (AR 100). Under 20 those circumstances, his decision to cease using the CPAP machine does not 21 undermine his credibility. Regarding plaintiff’s incontinence, Dr. Melendez 22 recommended that he wear adult diapers and urinate on a regular basis. (AR 228). 23 Plaintiff testified that a physician ordered him “the biggest size” of diapers but 24 “[t]hey didn’t even fit.” (AR 102). In light of these circumstances, plaintiff’s 25 failure to follow Dr. Melendez’s recommended course of treatment does not 26 undermine his credibility. 27 Remand is warranted for the ALJ to reassess plaintiff’s credibility. 28 /// 8 1 V. CONCLUSION4 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.5 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: December 15, 2010 7 _____________/s/____________________ Honorable Jacqueline Chooljian 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 4 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 5 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remand is an option where the ALJ stated invalid reasons for rejecting a claimant’s excess pain testimony). 9
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