Karen Logan v. Michael J Astrue, No. 5:2010cv01310 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasonsset forth below, the decision of the Commissioner is reversed, andthe matter is remanded for further proceedings consistent with thisopinion. (See document for details.) Accordingly, the case is remanded for further proceedings consistent with this opinion and order. (rla)
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Karen Logan v. Michael J Astrue Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 KAREN LOGAN, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-1310-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Karen Logan seeks judicial review of the Social 18 Security 19 Security Disability Insurance ( SSDI ) benefits. For the reasons 20 set forth below, the decision of the Commissioner is reversed, and 21 the matter is remanded for further proceedings consistent with this 22 opinion. Commissioner s denial of her application for Social 23 24 I. Facts and Procedural Background 25 Plaintiff was born on July 2, 1957. She completed two years of 26 college and has work experience as a phone company customer service 27 agent and a banking operational officer. (Administrative Record 28 ( AR ) 98, 103, 108.) Plaintiff filed her application for SSDI 1 Dockets.Justia.com 1 benefits on November 29, 2007, alleging disability beginning April 2 11, 2005, due to cervical disc impairment and depression. (AR 93, 3 98.) Her application was denied initially on April 28, 2008, and 4 upon reconsideration on August 27, 2008. (AR 43-47, 51-55.) An 5 administrative 6 Administrative Law Judge ( ALJ ) F. Keith Varni. Plaintiff was 7 represented by counsel and testified on her own behalf. (AR 21-38.) 8 ALJ Varni issued an unfavorable decision on October 30, 2009. 9 (AR 9-18.) The ALJ found that Plaintiff suffered from the severe of hearing cervical was held on degenerative August disc 4, disease 2009, before 10 impairment status post 11 fusion. (Id.) The ALJ determined that this severe impairment did 12 not meet the requirements of a listed impairment found in 20 C.F.R. 13 Part 404, Subpart P, Appendix 1. (AR 13.) 14 The ALJ further found that Plaintiff retained the residual 15 functional capacity ( RFC ) to perform light work except she is 16 limited in pushing and pulling with the lower extremities; can 17 occasionally climb ramps and stairs and frequently balance, stoop, 18 kneel, 19 scaffolds; is limited in reaching in all directions; and she must 20 avoid concentrated exposure to hazards (machinery, heights, etc.). 21 (AR 13.) The ALJ concluded that Plaintiff could return to her past 22 relevant work as a customer service representative and banking 23 operational officer, and was therefore not entitled to disability 24 benefits. (AR 17.) crouch or crawl, but never climb ladders, ropes or 25 The Appeals Council denied review on June 30, 2010, and 26 Plaintiff timely commenced this action for judicial review. On 27 March 10, 2011, the parties filed a Joint Stipulation ( Joint 28 Stip. ) of disputed facts and issues, including the following 2 1 claims of error: (1) the ALJ failed to properly consider the 2 opinions of Plaintiff s treating physicians; (2) the ALJ failed to 3 provide a complete and proper assessment of Plaintiff s RFC; (3) 4 the ALJ failed to properly consider the actual mental and physical 5 demands of Plaintiff s past relevant work; and (4) the ALJ did not 6 make proper credibility findings. (Joint Stip. 2-3.) Plaintiff asks 7 the Court to reverse and order an award of benefits, or in the 8 alternative, remand for further administrative proceedings. (Joint 9 Stip. 20.) The Commissioner requests that the ALJ s decision be 10 affirmed. (Joint Stip. 20-21.) 11 After reviewing the parties respective contentions and the 12 record as a whole, the Court finds Plaintiff s contention regarding 13 the ALJ s failure to make a proper credibility determination to be 14 meritorious 15 consistent with this opinion.1 and remands this matter for further proceedings 16 17 18 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner s 20 decision must be upheld unless the ALJ s findings are based on 21 legal error or are not supported by substantial evidence in the 22 record as a whole. Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 23 1999); Parra decision v. Astrue, to deny 481 benefits. F.3d 742, 746 The Commissioner s (9th Cir. 2007). 24 25 26 27 28 1 Because the ALJ erred by failing to provide specific and clear reasons for determining that Plaintiff was not fully credible, the Court does not reach the remaining issues and will not decide whether any of these issues would independently warrant relief. Upon remand, the ALJ may wish to consider the other issues raised by Plaintiff. 3 1 Substantial evidence means more than a scintilla, but less than a 2 preponderance; it is evidence that a reasonable person might accept 3 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 4 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 5 466 6 substantial evidence supports a finding, the reviewing court must 7 review the administrative record as a whole, weighing both the 8 evidence that supports and the evidence that detracts from the 9 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 10 (9th Cir. 1996). If the evidence can support either affirming 11 or reversing the ALJ s conclusion, the reviewing court may not 12 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 13 882. F.3d 880, 882 (9th Cir. 2006)). To determine whether 14 15 III. The ALJ Improperly Discredited Plaintiff s Subjective Symptom 16 Testimony 17 Plaintiff contends that the ALJ failed to provide clear and 18 convincing reasons for discrediting 19 testimony. (Joint Stip. 14.) Plaintiff testified to the following 20 at the administrative hearing: She stopped working because she was 21 having pain in her neck, head, back, arms, shoulders and hands due 22 to cervical disc fusion surgery she had in 2003. (AR 24.) She 23 decided not to have additional surgery. (Id.) She receives epidural 24 injections once a month at a pain management clinic, which help 25 relieve her pain for approximately two weeks, and she also takes 26 pain medication. (AR 24-26, 32-33.) She cannot return to her past 27 job, which primarily involved working at a computer station, 28 because she would not be able to get up and leave and rest and 4 her subjective symptom 1 walk or stand when [she] needs to do it. (AR 27-28.) While 2 working, her pain would increase in intensity during the course of 3 a work week. (AR 28.) Her daily pain level ranges from a six or 4 seven on a scale of one to ten. (AR 31.) In addition, she is 5 generally able to sit or stand for approximately one hour before 6 she must change positions. (AR 31-32.) 7 To determine whether a claimant s testimony about subjective 8 pain or symptoms is credible, an ALJ must engage in a two-step 9 analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 10 (citing Lingenfelter 504 F.3d at 1035-36). First, the ALJ must 11 determine whether the claimant has presented objective medical 12 evidence of an underlying impairment which could reasonably be 13 expected 14 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces 15 objective 16 adjudicator may not reject a claimant s subjective complaints based 17 solely on a lack of objective medical evidence to fully corroborate 18 the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 19 345 (9th Cir. 1991) (en banc). To the extent that an individual s 20 claims of functional limitations and restrictions due to alleged 21 pain is reasonably consistent with the objective medical evidence 22 and other evidence in the case, the claimant s allegations will be 23 credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 24 404.1529(c)(4), 416.929(c)(4)).2 to produce medical the evidence alleged of an pain or underlying other symptoms. impairment, an 25 26 27 28 2 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d 5 1 Unless there is affirmative evidence showing that the claimant 2 is malingering, the ALJ must provide specific, clear and convincing 3 reasons for discrediting a claimant s complaints. Robbins, 466 F.3d 4 at 883. General findings are insufficient; rather, the ALJ must 5 identify 6 undermines the claimant s complaints. Reddick, 157 F.3d at 722 7 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The 8 ALJ must consider a claimant s work record, observations of medical 9 providers what testimony and third is not parties credible with and knowledge what of evidence claimant s 10 limitations, aggravating factors, 11 by symptoms, effects of medication, and the claimant s daily 12 activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 13 1996). The ALJ may also consider an unexplained failure to seek 14 treatment or follow a prescribed course of treatment and employ 15 other ordinary techniques of credibility evaluation. Id. (citations 16 omitted). 17 Here, the ALJ functional restrictions caused concluded that Plaintiff s medically 18 determinable impairments could reasonably be expected to cause the 19 alleged symptoms. (AR 14.) However, the ALJ rejected Plaintiff s 20 description of her symptoms to the extent they are inconsistent 21 with the ALJ s assessment that Plaintiff retained the RFC to 22 perform her past relevant work. (Id.) Because there was no evidence 23 of malingering, the ALJ was required to provide specific, clear and 24 convincing reasons for rejecting Plaintiff s subjective allegations 25 of pain and functional limitations. 26 The ALJ provided two reasons 27 28 at 346 n.3. 6 for rejecting Plaintiff s 1 testimony. First, the ALJ found that the objective medical evidence 2 did not support Plaintiff s subjective pain and symptom testimony, 3 relying upon two medical reports: a June 23, 2006 report from Dr. 4 Richard Ostrup, M.D. and an April 8, 2008 report by Dr. Thomas 5 Sabourin, M.D. (AR 14.) While subjective pain testimony cannot be 6 rejected on the sole ground that it is not fully corroborated by 7 objective 8 relevant factor in determining the severity of the claimant s pain 9 and its disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 10 medical evidence, the medical evidence is still a (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2). 11 In citing Dr. Ostrup s medical report, the ALJ merely stated 12 that Dr. Ostrup reported that claimant was neurologically intact. 13 (AR 14.) However, the ALJ omitted various other portions of Dr. 14 Ostrup s 15 subjective symptom and pain testimony. For example, Dr. Ostrup 16 diagnosed Plaintiff with [l]eft C7 radiculopathy associated with 17 persistent and symptomatic foraminal stenosis at C6-7. (AR 473.) 18 He also stated that Plaintiff should have a second surgery as she 19 would benefit from re-exploration of the C6-7 disc with fusion 20 because it appeared that a significant component of [Plaintiff s] 21 discomfort is related to further compression of the left C7 nerve 22 root. (AR 472.) Thus, the ALJ appears not to have considered Dr. 23 Ostrup s report as a whole, but instead emphasized only selective 24 evidence which was unfavorable to Plaintiff. report, which were more supportive of Plaintiff s 25 The ALJ also cited the report of the examining physician, Dr. 26 Sabourin, who determined that the results of Plaintiff s various 27 tests were largely normal. (AR 518-522.) Dr. Sabourin also noted 28 that Plaintiff enters today with pain syndrome above and beyond 7 1 the objective findings and the severity and duration of her 2 symptoms disproportionate to the determinable condition. (AR 522.) 3 However, 4 Plaintiff was exaggerating her pain or symptoms nor that she was 5 malingering. Further, as discussed above, subjective pain testimony 6 cannot be rejected based upon a lack of medical evidence alone. See 7 Rollins, 261 F.3d at 857. as Plaintiff notes, Dr. Sabourin never stated that 8 In fact, aside from Dr. Sabourin s report, the medical record 9 as a whole largely supports Plaintiff s claims of severe and 10 persistent pain. Plaintiff s history of complaints and attempts to 11 obtain relief for her pain allegations are well documented. For 12 example, Plaintiff has extensive medical records related to her 13 treatment at the Temecula Pain Management Center for the period 14 from July 22, 2005 to May 9, 2008, records which the ALJ completely 15 failed to discuss. (AR 238-371, 532-537.) See Social Security 16 Regulation ( SSR ) 96-7P, 1996 WL 374186 at *7 ( In general, a 17 longitudinal medical record demonstrating an individual s attempts 18 to seek medical treatment for pain or other symptoms and to follow 19 that 20 individual s allegations of intense or persistent pain or other 21 symptoms for the purposes of judging the credibility of the 22 individual s statements. ). treatment once it is prescribed lends support to an 23 In support of his argument that the ALJ properly addressed 24 Plaintiff s subjective complaints, the Commissioner points to other 25 evidence in the record which allegedly discredits Plaintiff s 26 subjective 27 Commissioner notes that the results of assorted medical tests 28 performed by various physicians were largely unremarkable. (Joint statements. (Joint Stip. 8 18-19.) For example, the 1 Stip. 18-19, citing AR 151-152, 157-159, 167, 463, 520-521.) 2 However, even assuming that this medical evidence in the record 3 provides sufficient reason for the ALJ to reject Plaintiff s 4 subjective complaints, the ALJ did not cite this evidence in 5 support of his adverse credibility determination. (AR 14-15.) It 6 would be error for this Court to affirm the ALJ s decision based 7 upon reasons that the ALJ did not discuss. Connett v. Barnhart, 340 8 F.3d 871, 874 (9th Cir. 2003). 9 Second, the ALJ found Plaintiff not fully credible because her 10 ability to perform certain activities of daily living was at odds 11 with the alleged severity of her impairment. (AR 15.) Although a 12 claimant does not need to be utterly incapacitated in order to 13 be disabled, Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 14 2001), the ability to perform certain activities of daily life can 15 support a finding that the claimant s reports of his or her 16 impairment are not fully credible. See Bray v. Comm r of Soc. Sec. 17 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 925 18 F.2d 1127, 1130 (9th Cir. 1990) (finding that the claimant s 19 ability to take care of her personal needs, prepare easy meals, do 20 light housework and shop for some groceries ... may be seen as 21 inconsistent with the presence of a condition which would preclude 22 all work activity ) (citing Fair, 885 F.2d at 604). The problem in 23 this 24 particular activities that Plaintiff is capable of performing which 25 would be at odds with her claimed inability to work. Rather, the 26 ALJ merely stated that Plaintiff reported in her adult function 27 reports that she is able to perform a wide range of activities of 28 daily case, however, living. (AR is that 25.) the General 9 ALJ failed findings to identify like these any are 1 insufficient. The ALJ must specify what evidence in the record 2 undermines Plaintiff s credibility. 3 In sum, each of the ALJ s reasons for rejecting Plaintiff s 4 testimony was either legally improper or unsupported by substantial 5 evidence in the record. 6 7 IV. Conclusion 8 The decision whether to remand for further proceedings is 9 within this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 10 1175-78 (9th Cir. 2000). Where no useful purpose would be served by 11 further administrative proceedings, or where the record has been 12 fully developed, it is appropriate to exercise this discretion to 13 direct an immediate award of benefits. Id. at 1179 ( [T]he decision 14 of whether to remand for further proceedings turns upon the likely 15 utility of such proceedings. ); Benecke v. Barnhart, 379 F.3d 587, 16 593 (9th Cir. 2004). However, where there are outstanding issues 17 that must be resolved before a determination of disability can be 18 made, and it is not clear from the record that the ALJ would be 19 required to find the claimant disabled if all the evidence were 20 properly evaluated, remand is appropriate. Bunnell v. Barnhart, 336 21 F.3d 1112, 1115-16 (9th Cir. 2003); see also Connett, 340 F.3d at 22 876 23 determination). (remanding case for reconsideration of credibility 24 Here, the ALJ failed to explain with sufficient specificity 25 the basis for his determination that Plaintiff was not fully 26 credible regarding the intensity, persistence, and limiting effects 27 of her symptoms. 28 // 10 1 2 Accordingly, the case is remanded for further proceedings consistent with this opinion and order.3 3 4 Dated: March 17, 2011 5 6 ______________________________ Marc L. Goldman United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Because a remand is warranted based upon the deficient credibility finding, the Court has no reason to address the other claims of error raised. However, without expressing an opinion on the merits of those claims, the ALJ should take them into account in issuing a new decision. 11
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