Phyllis Linda Williams v. Michael J. Astrue, No. 5:2010cv00871 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Pursuant to sentence four of 42 U.S.C. section 405(g), It is Hereby Ordered that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Phyllis Linda Williams v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 PHYLLIS LINDA WILLIAMS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. ED CV 10-871-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a Complaint on June 22, 2010, seeking review of 26 the Commissioner s denial of benefits. The parties filed a consent to 27 proceed before a United States Magistrate Judge on July 9, 2010. 28 /// Dockets.Justia.com 1 Plaintiff filed a Notice of Plaintiff s Motion for Summary 2 Judgment or Remand and a supporting memorandum ( Plaintiff s Memo ) 3 on December 20, 2010. 4 for Summary Judgment on January 19, 2011. 5 motions under submission without oral argument. 6 Order, filed June 23, 2010. Defendant filed a Notice of Motion and Motion The Court has taken both See L.R. 7-15; 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 On February 9, 2006, Plaintiff applied for disability benefits 11 beginning April 1, 2005 (Administrative Record ( A.R. ) 41). 12 Plaintiff reported she had suffered a back injury that precluded her 13 from standing for more than one hour out of an eight-hour day, and 14 precluded her from lifting more than 20 pounds (A.R. 103). 15 discussed below, Plaintiff similarly testified on April 24, 2008 to 16 pain and other symptomatology of allegedly disabling severity (A.R. 17 11-27). As 18 19 On May 30, 2008, an Administrative Law Judge ( ALJ ) found 20 Plaintiff not disabled through the date of the decision (A.R. 38-48). 21 The ALJ found that Plaintiff retained the ability to do a limited 22 range of light work with no mental limitations, and could perform her 23 past relevant work as an underwriter (A.R. 44, 47 (adopting vocational 24 expert testimony)). 25 testimony credible only to the extent consistent with the residual 26 functional capacity the ALJ determined to exist (A.R. 44-45). 27 /// 28 /// In denying benefits, the ALJ found Plaintiff s 2 1 In the context of a later-filed application for benefits, the 2 Administration found Plaintiff disabled under the Grids (Medical- 3 Vocational Rule 202.06) beginning August 22, 2008, the date of 4 Plaintiff s 60th birthday (Plaintiff s Memo at 4-5; Exhibit A to 5 Plaintiff s Memo). 6 this subsequent Administrative decision, except insofar as to 7 determine that the subsequent decision does not compel reversal or 8 remand under 42 U.S.C. section 405(g).1 9 /// 10 /// 11 /// In the present case, the Court has not considered 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 To the extent Plaintiff may be asserting that the subsequent Administrative decision should have preclusive effect in these proceedings or somehow is material to the Court s consideration of the issues herein (see Plaintiff s Memo at 5), the Court declines so to find. The disability issue in the two administrative proceedings was not identical (e.g., the later application involved a different time period, additional medical evidence, and a different age classification). Any determination rendered on the later application is not material to, or binding on, the present application. See Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (finding second ALJ s subsequent decision to award benefits was not inconsistent with prior denial where second application involved different medical evidence, a different time period, and a different age classification; remand under 42 U.S.C. § 405(g) for consideration of later decision was not warranted); Luna v. Astrue, 2008 WL 2559400, at *2 (D. Ariz. June 23, 2008), aff d, 623 F.3d 1032 (9th Cir. 2010) (remanding case for further administrative proceedings, distinguishing Bruton from case where it is not clear from record whether initial denial and subsequent award are reconcilable or inconsistent); see also Otero Suarez v. Barnhart, 2005 WL 2305012, at *3 (C.D. Cal. Sept. 21, 2005) (finding no issue preclusion from decision in administrative proceeding where proceeding involved different time period; issues were not identical); cf. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (declining to extend principles of res judicata announced in Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) to create a rebuttable presumption of disability where there is a prior finding of disability). 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 12 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 DISCUSSION 15 16 The Administration erred in evaluating Plaintiff s credibility. 17 Plaintiff testified that she could not perform her past relevant work 18 because she could not sit for more than an hour, and could not stand 19 because her legs assertedly get numb due to her back injury (A.R. 11). 20 Plaintiff said she had to move around, lie down or otherwise change 21 positions because she gets muscle cramps (A.R. 19-20). 22 thought she could sit for maybe 35 to 45 minutes before having to 23 get up and move around (A.R. 20). 24 pain medication, she might be able to get through eight hours 25 without lying down but she did not think she could (A.R. 20). Plaintiff Plaintiff added that if she had 26 27 Plaintiff explained that she has good and bad days, and that on 28 bad days she lies down for up to five hours from breakfast until the 4 1 afternoon (A.R. 20-21). Plaintiff said she had not applied for jobs 2 like her past relevant work because she did not think she could work 3 that kind of a job for eight hours a day (A.R. 23). 4 Plaintiff testified she thought that if she did not have physical 5 problems she absolutely could work and said she had no mental 6 problems that [she] knew of, yet (A.R. 12). 7 explained why she thought she could not work an eight-hour day, 8 however, she said she had problems with concentration, [] when your 9 legs and your back is [sic] bothering you, you can t stay doped up all At one point, When Plaintiff 10 the time. You got to, you got to be real with yourself, you know 11 (A.R. 24). Plaintiff added that her medications may make her fall 12 asleep or say something you shouldn t say or you just wouldn t be as 13 professional. 14 myself to do that (A.R. 24). I am a professional and I, and I just don t trust 15 16 The ALJ found that Plaintiff s medically determinable 17 impairments could reasonably be expected to produce the alleged 18 symptoms; however, [Plaintiff s] statements concerning the intensity, 19 persistence and limiting effects of these symptoms are not credible to 20 the extent they are inconsistent with the residual functional capacity 21 assessment (A.R. 46). 22 at a minimum the ALJ must make specific, cogent findings, supported 23 in the record. 24 2010); Robbins v. Social Security Administration, 466 F.3d 880, 883 25 (9th Cir. 2006); Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) 26 (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) and Rashad 27 v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)); Moisa v. Barnhart, 28 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ s credibility findings To support such a credibility determination, See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 5 1 must be sufficiently specific to allow a reviewing court to conclude 2 the ALJ rejected the claimant s testimony on permissible grounds and 3 did not arbitrarily discredit the claimant s testimony ); Holohan v. 4 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must 5 specifically identify the testimony [the ALJ] finds not to be 6 credible and must explain what evidence undermines the testimony ); 7 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) ( The ALJ must 8 state specifically which symptom testimony is not credible and what 9 facts in the record lead to that conclusion. ); see also Social 10 Security Ruling 96-7p.2 The ALJ failed to do so in the present case. 11 12 While the ALJ stated that Plaintiff said she had no psychiatric 13 problems (A.R. 44), the ALJ failed to discuss Plaintiff s testimony 14 that she believed she could not work an eight-hour day due to problems 15 with concentration caused by her pain and problems with falling asleep 16 or making inappropriate remarks due to the effects of her pain 17 18 19 20 21 22 23 24 25 26 27 28 2 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the arguably more rigorous clear and convincing standard. See, e.g., Brown v. Astrue, 2010 WL 5066039, at *1 (9th Cir. Dec. 10, 2010); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Robbins, 466 F.3d at 883; Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. The Court notes it may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 6 1 medication.3 2 of disabling pain or other non-exertional impairment, Orn v. Astrue, 3 495 F.3d 625, 635 (9th Cir. 2007), the ALJ should have discussed the 4 aforementioned testimony and explained the weight given to that 5 testimony, especially given the fact that the vocational expert 6 testified that a person precluded from performing detailed or complex 7 tasks could not perform Plaintiff s past relevant work as an 8 underwriter (A.R. 33-34). 9 (noting that the Administration will carefully consider information While an ALJ is not required to believe every allegation See generally 20 C.F.R. § 404.1529(c)(3) 10 a claimant may submit about her symptoms). From the record, the Court 11 cannot determine whether the ALJ failed to consider this potentially 12 material testimony, rejected the testimony for permissible reasons,4 13 or rejected the testimony for impermissible reasons. 14 /// 15 /// 16 /// 17 18 19 20 21 22 23 24 25 26 27 28 3 The regulations recognize that pain (or drugs taken to alleviate pain) may cause mental limitations that affect what a claimant may do in a work setting. See, e.g., 20 C.F.R. § 404.1545(a)(1) ( Your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. . . . We will assess your residual functional capacity based on all relevant evidence in your case record. ); 20 C.F.R. § 404.1529(c)(3) ( Factors relevant to your symptoms, such as pain, . . . include . . . [t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms. ). 4 The Court cannot affirm the administrative decision based on reasons for rejecting this testimony suggested for the first time in Defendant s motion. See Connett v. Barnhart, 340 F.3d at 874 (district court cannot affirm on the basis of evidence the ALJ failed to discuss); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision ). 7 1 Plaintiff argues that the Court should direct the payment of 2 disability benefits to Plaintiff or alternatively to credit as true 3 the disputed testimony of Plaintiff and remand for proceedings 4 consistent therewith. 5 true rule is not mandatory. 6 (remand is an option, and the crediting as true rule is not 7 mandatory, where the ALJ stated insufficient reasons for rejecting a 8 claimant s excess pain testimony); but see Lingenfelter v. Astrue, 504 9 F.3d at 1041 n.12 (appearing to suggest that remand is not an option See Plaintiff s Memo at 10. The crediting as See Connett v. Barnhart, 340 F.3d at 876 10 where the ALJ failed to state a legally sufficient basis for rejecting 11 a claimant s testimony); see also Vasquez v. Astrue, 572 F.3d 586, 593 12 (9th Cir. 2009) (noting but not resolving the intra-circuit conflict; 13 rule is not mandatory where there are outstanding issues that must be 14 resolved before a proper disability determination can be made ). 15 if the Court were to accept Plaintiff s testimony as true, there would 16 remain issues to be resolved before a proper determination could be 17 made. 18 worse after she stopped working on April 1, 2005 (the alleged onset 19 date) (A.R. 14-17, 103). 20 prescribed pain medication for her back some time after February 10, 21 2006. 22 medication); see also A.R. 136 (Complete Orthopedic Evaluation dated 23 March 23, 2006, noting Plaintiff was taking only blood pressure 24 medication); A.R. 151 (treatment note dated April 17, 2006, indicating 25 Vicodin prescribed for occasional back pain ). 26 Plaintiff complained to her treating physician that her pain was 27 worsening and interfering with her activities of daily living and 28 sleep (A.R. 176). Even Plaintiff testified that her back problems and leg numbness got The record shows that Plaintiff began taking See A.R. 116, 118 (Disability Report - Appeal first noting pain By December 29, 2006, The ALJ did not reach the issue of when Plaintiff s 8 1 alleged disability may have begun. The testimony and evidence that 2 Plaintiff wants credited does not identify when after the alleged 3 onset date Plaintiff s concentration may have been so limited by her 4 pain as to be disabling. 5 Plaintiff wants credited does not identify when Plaintiff s ability to 6 stay awake and on task may have been so limited by taking pain 7 medication as to be disabling. 8 credit as true rule in this case would not result in the immediate 9 payment of benefits. Similarly, the testimony and evidence that See A.R. 20. Thus, application of the 10 11 The Court declines to apply the non-mandatory credit as true 12 rule. This case is appropriate for remand for further administrative 13 proceedings. 14 2010) (finding no error in remanding case without applying credit as 15 true rule in similar circumstances); see generally INS v. Ventura, 16 537 U.S. 12, 16 (2002) (upon reversal of an administrative 17 determination, the proper course is remand for additional agency 18 investigation or explanation, except in rare circumstances).5 See, e.g., Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 19 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 22 DATED: March 7, 2011. 23 _________________/S/______________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 24 25 26 5 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 9
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