Jose A Espinoza v. Michael J Astrue, No. 5:2010cv01460 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOSE A ESPINOZA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-01460-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on September 24, 2010, seeking review 19 of the denial by the Social Security Commissioner (the Commissioner ) 20 of 21 disability insurance benefits ( DIB ), and supplemental security income 22 ( SSI ). 23 U.S.C. § 636(c), to proceed before the undersigned United States 24 Magistrate Judge. 25 2011, in which: 26 decision and remanding this case for the payment of benefits or, 27 alternatively, for further administrative proceedings; and defendant 28 requests that the Commissioner s decision be affirmed or, alternatively, plaintiff s application for a period of disability ( POD ), On October 21, 2010, the parties consented, pursuant to 28 The parties filed a Joint Stipulation on July 6, plaintiff seeks an order reversing the Commissioner s remanded for further administrative proceedings. The Court has taken 1 the parties Joint Stipulation under submission without oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 On September 14, 2006, plaintiff filed an application for POD, DIB, 6 and SSI. (Administrative Record ( A.R. ) 48.) Plaintiff, who was born 7 on July 6, 1965 (A.R. 54),1 claims to have been disabled since August 15, 8 2006 (A.R. 48, 50), due to diabetes, high blood pressure, neuropathy, 9 and skin infection (see, e.g., A.R. 299, 310). Plaintiff has past 10 relevant work experience as a barber and building maintenance/laborer. 11 (A.R. 54, 300.) 12 13 After the Commissioner denied plaintiff s claim initially and upon 14 reconsideration (A.R. 190-94, 200-05), plaintiff requested a hearing 15 (A.R. 206). 16 counsel, appeared and testified at a hearing before Administrative Law 17 Judge Michael D. Radensky (the ALJ ). 18 medical expert Samuel Landau, M.D., and vocational expert Corrine J. 19 Porter also testified. 20 claims 21 plaintiff s request for review of the ALJ s decision (A.R. 1-3). 22 decision is now at issue in this action. 23 /// 24 /// 25 /// (A.R. On December 3, 2008, plaintiff, who was represented by 48-55), (A.R. 155-85.) At the hearing, On March 23, 2009, the ALJ denied plaintiff s and the Appeals Council subsequently denied That 26 27 28 1 On the alleged disability onset date, plaintiff was 41 years old, which is defined as a younger individual. (A.R. 54; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since August 15, 5 disability. 6 following 7 neuropathy 8 determined that plaintiff does not have an impairment or a combination 9 of impairments that meets or equals one of the listed impairments in 20 10 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525, 404.1526, 11 416.925, 416.926). (A.R. 48, 50.) severe and 2006, alleged onset date of his The ALJ determined that plaintiff has the impairments: recurrent the diabetes abscesses. mellitus (A.R. 50.) with The peripheral ALJ also (A.R. 51.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity ( RFC ) to perform sedentary work. 15 (A.R. 51.) Specifically, the ALJ determined that plaintiff can: 16 17 use a cane as needed, lift and carry 20 pounds occasionally, 18 10 pounds frequently, stand/walk two hours in an eight hour 19 workday, sit for six hours in an eight hour workday, no 20 operating foot pedals or controls, no climbing ladders, no 21 work at heights or balancing, and work environment should be 22 air conditioned. 23 24 (Id.) 25 26 The ALJ concluded that plaintiff is unable to perform his past 27 relevant work. (A.R. 54.) However, having considered plaintiff s age, 28 education, work experience, RFC, and the testimony of the vocational 3 1 expert, the ALJ found that jobs exist in the national economy that 2 plaintiff could perform, including cashier II, small items assembly, 3 charge 4 Accordingly, the ALJ concluded that plaintiff has not been under a 5 disability, as defined in the Social Security Act, from August 15, 2006, 6 through the date of his decision. account clerk, and inspectors production. (A.R. 54-55.) (A.R. 55.) 7 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 11 decision to determine whether it is free from legal error and supported 12 by substantial evidence in the record as a whole. 13 F.3d 625, 630 (9th Cir. 2007). 14 evidence as a reasonable mind might accept as adequate to support a 15 conclusion. 16 a mere scintilla but not necessarily a preponderance. 17 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 18 record can constitute substantial evidence, only those reasonably drawn 19 from the record will suffice. 20 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, 21 22 Although this Court cannot substitute its discretion for that of 23 the Commissioner, the Court nonetheless must review the record as a 24 whole, weighing both the evidence that supports and the evidence that 25 detracts from the [Commissioner s] conclusion. 26 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 27 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 28 responsible for determining credibility, resolving conflicts in medical 4 Desrosiers v. Sec y of The ALJ is 1 testimony, and for resolving ambiguities. 2 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 4 The Court will uphold the Commissioner s decision when the evidence 5 is susceptible to more than one rational interpretation. Burch v. 6 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 7 review only the reasons stated by the ALJ in his decision and may not 8 affirm the ALJ on a ground upon which he did not rely. 9 at 630; see also Connett, 340 F.3d at 874. However, the Court may Orn, 495 F.3d The Court will not reverse 10 the Commissioner s decision if it is based on harmless error, which 11 exists only when it is clear from the record that an ALJ s error was 12 inconsequential to the ultimate nondisability determination. Robbins 13 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 14 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 15 at 679. 16 17 DISCUSSION 18 19 Plaintiff claims that the ALJ: (1) improperly considered and 20 rejected the opinion of his treating physician; (2) failed to find that 21 plaintiff suffers from a legally severe impairment attributable to his 22 hands; and (3) improperly evaluated plaintiff s credibility. 23 Stipulation ( Joint Stip. ) at 6-32.) 24 /// 25 /// 26 /// 27 /// 28 /// 5 (Joint 1 I. The ALJ Failed To Give A Specific And Legitimate Reason Supported 2 By Substantial Evidence For Rejecting The Opinion Of Plaintiff s 3 Treating Doctor. 4 5 It is the responsibility of the ALJ to analyze evidence and resolve 6 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 7 (9th Cir. 1989). 8 assessing a social security claim, [g]enerally, a treating physician s 9 opinion carries more weight than an examining physician s, and an 10 examining physician s opinion carries more weight than a reviewing 11 physician s. 12 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 13 14 The opinions of treating physicians are entitled to the greatest 15 weight, because the treating physician is hired to cure and has a better 16 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 17 a treating physician s opinion is not contradicted by another physician, 18 it may be rejected only for clear and convincing reasons. 19 Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted 20 by another doctor, a treating physician s opinion may only be rejected 21 if the ALJ provides specific and legitimate reasons supported by 22 substantial evidence in the record. 23 [w]hen a treating physician s opinion is contradicted . . . , the ALJ 24 must assess its persuasiveness in light of specified factors, including 25 the 26 examination; the nature and extent of the treatment relationship; and 27 the treating opinion s consistency with the record as a whole. 28 Aranda v. Comm r SSA, 405 Fed. Appx. 139, 141 (9th Cir. 2010)(quoting length of the treatment Id. It is well established that relationship 6 Lester v. and the frequency of 1 Orn, 495 F.3d at 631). 2 The 3 opinion of a nonexamining physician cannot by itself 4 constitute substantial evidence that justifies the rejection of the 5 opinion of . . . a treating physician. 6 Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that 7 the 8 constitute substantial evidence). 9 claimant s treating physician is contradicted, and the opinion of a 10 nontreating source is based on independent clinical findings that differ 11 from those of the treating physician, the opinion of the nontreating 12 source may itself be substantial evidence. 13 Independent clinical findings include (1) diagnoses that differ from 14 those offered by another physician and that are supported by substantial 15 evidence, or (2) findings based on objective medical tests that the 16 treating physician has not herself considered. 17 (internal citations omitted). nonexamining physician s opinion Lester, 81 F.3d at 831; see with nothing more did not However, [w]here the opinion of the Andrews, 53 F.3d at 1041. Orn, 495 F.3d at 632 18 An ALJ has a special duty to fully and fairly develop the record 19 20 and to assure that claimant s interests are considered. 21 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 22 404.1512(e) and 416.912(e), the Administration will seek additional 23 evidence or clarification from your medical source when the report from 24 your medical source contains a conflict or ambiguity that must be 25 resolved, [or] the report does not contain all the necessary information 26 . 27 1996)(noting that [i]f the ALJ thought he needed to know the basis of 28 [the doctor s] opinions in order to evaluate them, he had a duty to . . . See Smolen v. Chater, 7 80 Brown v. Pursuant to 20 C.F.R. §§ F.3d 1273, 1288 (9th Cir. 1 conduct an appropriate inquiry ). 2 3 In a February 12, 2008 Multiple Impairment Questionnaire, 4 plaintiff s treating doctor, Edna Arteaga-Hernandez, M.D., a family 5 practitioner, 6 mellitus, 7 infections. (A.R. 502.) Dr. Hernandez noted that plaintiff has severe, 8 chronic, burning and debilitating pain in his legs, feet, hands, and 9 forearms. diagnosed diabetic plaintiff neuropathy, (A.R. 503.) with and insulin chronic dependent diabetes dermatological Dr. Hernandez opined that plaintiff can: staph sit 10 and stand/walk for one hour or less in an eight-hour work day; must be 11 able to get up and move around intermittedly for 10-15 minutes at a 12 time; can occasionally lift and carry five pounds or less; can never 13 lift or carry more than five pounds; has marked limitations in grasping, 14 turning, and twisting objects; marked limitations in using fingers/hands 15 for fine manipulations; and marked limitations in using arms for 16 reaching (including overhead). (A.R. 504-06.) Dr. Hernandez determined 17 that plaintiff: 18 temperature extremes, humidity, and heights; and should not push, pull, 19 kneel, 20 plaintiff s impairments are ongoing and can be expected to last at least 21 12 months. 22 will produce good days and bad days, and plaintiff is likely to be 23 absent from work more than three times a month as a result. 24 Lastly, Dr. Hernandez noted that plaintiff has tried multiple therapies 25 and modalities without improvement. bend, or has limited vision; needs to avoid wetness, gases, stoop. (A.R. 508.) Dr. Hernandez opined that Further, Dr. Hernandez opined that plaintiff s impairments (Id.) (A.R. 508.) 26 27 In his decision, the ALJ gives less weight to Dr. Hernandez s 28 opinion than that of nonexamining, nontreating medical expert Samuel 8 1 Landau, M.D., because: (1) Dr. Hernandez s opinion contains conclusions 2 of disability - a determination reserved to the ALJ; and (2) Dr. 3 Landau found no objective support for Dr. Hernandez s statements in [her 4 Questionnaire]. (A.R. 52-53.) 5 6 To the extent the ALJ rejects Dr. Hernandez s opinion because it 7 contains an opinion regarding disability - a determination which is 8 reserved to the ALJ - the ALJ s reasoning is unpersuasive. 9 opinion reflect[s] judgments about the nature and severity of [a 10 claimant s] impairment(s), including [a claimant s] symptoms, diagnosis 11 and prognosis, what [a claimant] can still do despite impairment(s), and 12 [a claimant s] physical or mental restrictions. 13 286 14 404.1527(a)(2)). 15 had disabling pain, but she also opined, as described in detail supra, 16 that plaintiff had significant limitations and restrictions resulting 17 from his impairments. 18 medical opinions regarding plaintiff s limitations and restrictions, the 19 ALJ apparently ignored them on the ground that Dr. Hernandez also 20 rendered a non-dispositive opinion regarding ultimate disability. While 21 this may constitute a specific reason for rejecting Dr. Hernandez s 22 opinion, it is not a legitimate one.2 Fed. Appx. 397, 399 (9th Cir. A medical Boardman v. Astrue, 2008)(citing 20 C.F.R. § Here, not only did Dr. Hernandez find that plaintiff Rather than affording weight to Dr. Hernandez s See id. 23 24 25 26 2 Defendant mischaracterizes plaintiff s argument regarding the ALJ s failure to give proper weight to the non-dispositive portions of Dr. Hernandez s opinion. Defendant asserts that, [c]ontrary to [p]laintiff s contention . . . , the ALJ was not required to accept the opinion of Dr. Hernandez that [p]laintiff was disabled. (Joint Stip. at 18.) 27 In fact, as plaintiff correctly asserts: 28 9 1 Further, to the extent the ALJ rejects Dr. Hernandez s opinion 2 because Dr. Landau found 3 Questionnaire were 4 characterizes Dr. 5 inaccurately. See Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 6 1998)(reversing and remanding case because ALJ s characterization of the 7 record was not entirely accurate regarding the content or tone ); see 8 also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)(holding 9 that it was error for an ALJ to ignore or misstate competent evidence in not that Dr. supported Landau s Hernandez s by objective testimony too statements evidence, broadly in the the ALJ and, thus, 10 the record to justify his conclusion). At the administrative hearing, 11 when the ALJ asked Dr. Landau whether he disagreed with Dr. Hernandez s 12 assessment that plaintiff would miss several days from work every month, 13 Dr. Landau responded, 14 assessment. I could find no objective evidence to support [it] though. 15 (A.R. 165.) 16 not state or suggest that all of Dr. Hernandez s findings in her 17 Questionnaire lacked objective support. No, I don t disagree with [Dr. Hernandez s] Contrary to the ALJ s suggestion, however, Dr. Landau did As such, the ALJ s reasoning 18 19 20 21 22 23 24 25 26 27 28 Dr. Hernandez did not simply render an unsupported declaration that [plaintiff] is disabled, as the ALJ s reasoning would suggest. Rather, she took note of his underlying conditions - the same ones which the ALJ had conceded amount to legally severe impairments, listed the objective and subjective bases for those diagnoses, noted the primary symptoms that stem from those disorders, and then gave detailed estimates of how those conditions affect his ability to function in several areas. Not only did she render opinions as to how his impairments affect his ability to sit, stand, walk, lift, carry, and perform manipulative functions, but she also discussed how they affect his non-exertional functions, such as his ability to concentrate, maintain attention, tolerate workplace stresses, and maintain regular job attendance. . . . Dr. Hernandez assessments were of a much more fundamental and specific nature, and constitute the very types of opinions that the Social Security Regulations most value. (Joint Stip. at 10; internal citations omitted.) 10 1 does not constitute a specific and legitimate reason for the wholesale 2 rejection of Dr. Hernandez s opinion regarding the nature and extent of 3 plaintiff s impairments, limitations, and restrictions. 4 the extent that the ALJ needs to know the basis of the Dr. Hernandez s 5 opinion regarding plaintiff s likely absences from work, the ALJ should 6 conduct an appropriate inquiry. Moreover, to See Smolen, 80 F.3d at 1288. 7 8 As a consequence of his dismissal of the opinion of Dr. Hernandez 9 for improper reasons, the ALJ failed to assess that opinion adequately. 10 Specifically, the ALJ failed to assess the persuasiveness of the 11 treating physician s opinion in view of the factors set forth in 20 12 C.F.R. §§ 404.1527(d), 416.927(d). These factors, which the ALJ did not 13 consider, suggest that Dr. Hernandez s opinion deserves greater weight 14 than that accorded to it by the ALJ. 15 regularly treated plaintiff for over two years, and her assessment of 16 plaintiff was based on regular observation, evaluation, and diagnosis. 17 Accordingly, the ALJ erred by assigning her opinion little weight 18 without considering all of these factors.3 In pertinent part, Dr. Hernandez 19 20 Moreover, defendant incorrectly asserts that plaintiff s reliance 21 on Lester v. Chater is misplaced. In Lester, the Ninth Circuit found 22 that the ALJ committed an error of law when his primary reason for 23 rejecting the opinions of the treating and examining sources was that 24 they conflicted with the testimony of the nonexamining medical advisor. 25 81 F.3d at 830. 26 medical advisor s testimony does not by itself constitute substantial Specifically, the Court found that [t]he nonexamining 27 3 28 In contrast, Dr. Landau, to whose opinion the ALJ gives controlling weight, never examined or treated plaintiff. 11 1 evidence that warrants a rejection of either the treating doctor s or 2 the examining psychologist s opinion. Id. at 831. 3 4 Defendant contends that this case is distinguishable from Lester, 5 because [h]ere, the ALJ relied on the fact that [the record] lacked 6 adequate objective evidence . . . to support Dr. Hernandez s opinion, in 7 addition to the fact that it conflicted with the opinions of non- 8 examining 9 physician, Dr. [Diane] Rose[, M.D.] medical expert Dr. Landau and State agency reviewing - opinions that the ALJ found 10 were consistent with and supported by the objective evidence in the 11 record. 12 Landau reviewed . . . the record evidence and based his opinion on 13 independent findings in the record. (Joint Stip. at 20.) Defendant notes, for example, that Dr. (Joint Stip. at 21.) 14 15 However, as noted supra, the ALJ s finding that the opinion of Dr. 16 Hernandez is not supported by objective evidence is unavailing, because 17 it is based on a mischaracterization of the record. 18 not entirely clear, to the extent defendant suggests that Dr. Landau s 19 opinion could constitute substantial evidence, because it is based on 20 independent 21 unpersuasive. Significantly, while Dr. Landau cites records which post- 22 date Dr. Hernandez s February 2008 Questionnaire, it does not appear 23 that Dr. Landau relied on any independent clinical findings that differ 24 from those found by Dr. Hernandez in assessing plaintiff s RFC.4 Indeed, findings in the record, Further, although defendant s contention is 25 26 4 When asked how he arrived at his assessment, Dr. Landau testified that he relied on the following evidence: 27 28 1F, the records 2006 where [plaintiff] is being treated for an abscess, one of his many. And at that time, the diabetes 12 1 Dr. Landau s findings that plaintiff suffers from uncontrolled diabetes 2 and peripheral neuropathy mirror Dr. Hernandez s findings. 3 appears that the ALJ s primary reason for rejecting Dr. Hernandez s 4 opinion was that it conflicts with that of the nontreating, nonexamining 5 physician, Dr. Landau - a reason which, as the Ninth Circuit held in 6 Lester, constitutes error. 7 was not misplaced. Thus, it Accordingly, plaintiff s reliance on Lester 8 9 Therefore, for the aforementioned reasons, the ALJ erred by failing 10 to give specific and legitimate reasons for rejecting the opinion of Dr. 11 Hernandez 12 plaintiff s regarding the impairments.5 limitations On remand, and the restrictions ALJ should caused revisit by his 13 14 15 16 17 18 19 20 21 22 23 mellitus and peripheral neuropathy were diagnosed. In 5F the diabetes mellitus is uncontrolled and neuropathic pain was present in his hands and feet. In 6F he was using a cane. He was using a cane by March 23rd of 07. 9F is a [RFC] by his Dr. Hernandez from February of this year that says he disabled because of pain. In 10F there are some records of treatment for various infections. Diabetes mellitus is out of control up to 2008. [Plaintiff] was being treated with medication, Actos, which causes edema, he had some swelling in his legs. He had abscesses that were incised and drained in his finger and buttock. He had a hospitalization for lactic acidosis, which is a complication of the medication he was taking for diabetes. Again, his diabetes is not, is not controlled [INAUDIBLE]. In 11F a record of 2008 which shows the same things. He hurt his back, he was lifting 90 pounds of cement. He hurt his back, strained his back. Diabetes was checked again and was out of control. And then in 12F he had a right thigh abscess and 13F records 2007, 2008 [(which are those of Dr. Hernandez)] that showed the same thing, the uncontrolled diabetes mellitus. 24 25 26 27 28 (A.R. 162-63.) In effect, Dr. Landau relied on records which show that plaintiff suffered from uncontrolled diabetes, peripheral neuropathy, and complications stemming from diabetes - findings which do not differ from those of Dr. Hernandez. 5 Moreover, although defendant points to evidence in the record to support the ALJ s rejection of Dr. Hernandez s opinion, the Court cannot entertain these post hoc rationalizations. See, e.g., Connett, 13 1 consideration of Dr. Hernandez s opinions and findings, and should the 2 ALJ elect to give them no weight and instead to give controlling weight 3 to the opinion of a nonexamining medical expert, the ALJ should set 4 forth specific and legitimate reasons for so doing. 5 extent the ALJ needs to know the basis of any of Dr. Hernandez s 6 diagnoses or medical opinions, the ALJ should conduct an appropriate 7 inquiry. Further, to the 8 9 10 II. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff s Testimony To Be Not Credible. 11 12 Once a disability claimant produces objective medical evidence of 13 an underlying impairment that is reasonably likely to be the source of 14 claimant s subjective symptom(s), all subjective testimony as to the 15 severity of the symptoms must be considered. 16 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 17 (9th Cir. 1991)(en banc); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) 18 (explaining how pain and other symptoms are evaluated). 19 ALJ makes a finding of malingering based on affirmative evidence 20 thereof, he or she may only find an applicant not credible by making 21 specific findings as to credibility and stating clear and convincing 22 reasons for each. 23 considered in weighing a claimant s credibility include: 24 claimant s reputation for truthfulness; (2) inconsistencies either in 25 the claimant s testimony or between the claimant s testimony and her Moisa v. Barnhart, 367 Robbins, 466 F.3d at 883. [U]nless an The factors to be (1) the 26 27 28 340 F.3d at 874 (finding that [i]t was error for the district court to affirm the ALJ s . . . decision based on evidence the ALJ did not discuss ). 14 1 conduct; (3) the claimant s daily activities; (4) the claimant s work 2 record; and (5) testimony from physicians and third parties concerning 3 the nature, severity, and effect of the symptoms of which the claimant 4 complains. 5 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 6 7 The ALJ found that plaintiff s medically determinable impairments 8 could reasonably be expected to cause the alleged symptoms. (A.R. 53.) 9 Further, the ALJ cited no evidence of malingering by plaintiff. 10 Accordingly, the ALJ s reason for rejecting plaintiff s credibility must 11 be clear and convincing. 12 13 The ALJ stated that plaintiff s statements concerning the 14 intensity, persistence and limiting effects of [his] symptoms are not 15 credible to the extent they are inconsistent with [the ALJ s RFC] 16 assessment. 17 not credible because: 18 excess of the objective findings of record ; and (2) plaintiff s 19 testimony contains various inconsistencies. (A.R. 53.) Specifically, the ALJ found plaintiff to be (1) plaintiff s subjective complaints are in (Id.) 20 21 The ALJ s first ground for rejecting plaintiff s testimony is 22 unpersuasive. 23 that he has poor sensation in his hands, drops things, is unable to 24 write for too long, cannot do any keyboarding, and is unable to sit for 25 very 26 objective findings of record. (A.R. 53.) However, as recognized by the 27 Ninth Circuit in Bunnell, 947 F.2d at 347, [i]f an adjudicator could 28 reject a claim of disability simply because [plaintiff] fails to produce long, In his decision, the ALJ rejects plaintiff s testimony because plaintiff s subjective 15 complaints exceed the 1 evidence supporting the severity of the pain there would be no reason 2 for an adjudicator to consider anything other than medical findings. 3 Accordingly, the ALJ s finding that the objective evidence does not 4 fully support the extent of plaintiff s subjective symptoms cannot, by 5 itself, constitute a clear and convincing reason for discrediting 6 plaintiff s testimony. See Varney v. Secretary, 846 F.2d 581, 584 (9th 7 Cir. 1988); Cotten v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see 8 also Burch, 400 F.3d at 681. 9 10 The ALJ s other ground for discrediting plaintiff -- to wit, 11 alleged inconsistencies in plaintiff s testimony -- is equally 12 unpersuasive. 13 credible because of inconsistencies in his testimony regarding his 14 ability to perform household chores. 15 plaintiff stated that he is unable to perform household chores and that 16 his wife performs all chores. [Plaintiff] indicated that this is due in 17 part to his wife performing her wifely duties and performing her role. 18 (A.R. 53.) 19 while he can take care of himself, his wife and children perform the 20 more complex chores.6 (A.R. 174.) For example, plaintiff testified that 21 he does not cook. 22 from cooking because of his problems or . . . because [his] wife just 23 tends to do the cooking, plaintiff responded Both. 24 get afraid, you know, like the pots, I can t lift them and you know. 25 (Id.) However, contrary to the ALJ s implication, the two statements do First, it appears the ALJ found that plaintiff is not Specifically, the ALJ notes that At the administrative hearing, plaintiff testified that (Id.) When asked by the ALJ whether he refrained Both. I kind of 26 6 27 28 Plaintiff testified that he performs simple tasks around the house. (A.R. 174.) For example, plaintiff testified that he can get himself something to drink, put dishes away, pick up after himself, and put his clothes into a pile in the corner. (A.R. 174-75.) 16 1 not appear to be mutually exclusive and/or inconsistent, and thus, the 2 ALJ s reason does not constitute a clear and convincing reason for 3 finding that plaintiff is not credible. 4 5 Second, the ALJ finds plaintiff s testimony that he does not drive 6 to be inconsistent with his testimony that he drove twice in the two 7 months preceding the hearing before the ALJ. 8 testimony, however, reveals no actual inconsistency between plaintiff s 9 two statements. A review of plaintiff s As plaintiff properly notes, when the ALJ asked 10 plaintiff if he drives, it was reasonable for plaintiff to assume that 11 the ALJ was asking whether plaintiff drives regularly. 12 27.) 13 matter is not inconsistent with his testimony that he drove on two 14 occasions in two months.7 15 that he had driven twice in two months, it does not appear that 16 plaintiff was being evasive.8 17 constitute a clear and convincing reason for rejecting plaintiff s 18 credibility. (Joint Stip. at As such, plaintiff s testimony that he does not drive as a general Moreover, because plaintiff readily admitted Accordingly, the ALJ s reasoning does not 19 20 Third, the ALJ finds plaintiff s testimony that he cannot sit for 21 more than 15 to 30 minutes at a time without feeling pain and pressure 22 to be inconsistent with his testimony that he watches television for up 23 to five hours per day. However, plaintiff specifically testified that 24 7 25 26 27 28 Upon re-examination, plaintiff testified that he does not drive because of the pain he experiences in his hands and particularly in his feet. (A.R. 171.) Specifically, plaintiff testified that, because of his foot pain, he is afraid that he is going to press a pedal and hurt [himself] or somebody. (Id.) 8 The ALJ did not ask plaintiff how far, for what duration of time, or for what purpose he drove on these two occasions. 17 1 he elevates his legs when he watches television to alleviate the pain 2 and stress he experiences. 3 plaintiff testified that he elevates them at a ninety degree angle. 4 (A.R. 183.) 5 along with plaintiff s other limitations, plaintiff needed to elevate 6 his feet for two to three hours a day at a ninety degree angle, [t]here 7 wouldn t be any work available at that degree of elevation. 8 Thus, the ALJ s reasoning on this point is unavailing. (A.R. 175.) When he elevates his legs, Significantly, the vocational expert testified that if, (Id.) 9 10 Lastly, the ALJ finds that plaintiff is not credible, because 11 plaintiff was allegedly not forthcoming with his educational level. 12 Specifically, the ALJ notes that plaintiff indicated that he had an 13 11th grade education, but first testified only to a 10th grade education 14 level, but upon further questioning, finally admitted he had a GED. 15 (A.R. 53.) 16 appear that plaintiff was trying to be evasive. 17 hearing, the ALJ asked plaintiff what was the highest educational level 18 [he had] completed. 19 grade, tenth grade, I believe. 20 plaintiff had indicated eleventh grade when [he] filled out [his] 21 paperwork, plaintiff explained that while he did go to the eleventh 22 grade . . . [, he could not] remember if [he] finished it because it was 23 in a camp. 24 in the affirmative, but noted that it s all for a school [INAUDIBLE]. 25 (A.R. 160.) 26 school equivalent. 27 school education by the nature of having the GED . . . it s like getting 28 a high school diploma without having to actually finish actual high However, contrary to the ALJ s suggestion, it does not (Id.) (A.R. 159.) At the administrative In response, plaintiff stated tenth (Id.) When the ALJ noted that When asked whether he had a GED, plaintiff responded The ALJ then explained to plaintiff that the GED is a high So for all intents and purposes you have a high 18 1 school. (Id.) As evidenced by plaintiff s testimony and the ALJ s 2 explanation of a GED, it appears that plaintiff was not attempting to 3 deceive the ALJ but, rather, was genuinely confused as to the highest 4 educational level he had completed and the significance of obtaining a 5 GED. 6 convincing reason for discrediting plaintiff. The ALJ s reason, therefore, cannot constitute a clear and 7 8 Accordingly, for the aforementioned reasons the ALJ failed to give 9 clear and convincing reasons, as required, for finding plaintiff to be 10 not credible. This constitutes error. III. The Must 11 12 13 ALJ Reconsider Whether Plaintiff s Hand Problems Constitute A Severe Impairment. 14 15 At step two of the sequential evaluation process, the ALJ is tasked 16 with identifying a claimant s severe impairments. 17 404.1520, 416.920. 18 inquiry is a de minimus screening device to dispose of groundless 19 claims. 20 combination of impairments may 21 evidence establishes a slight abnormality that has no more than a 22 minimal effect on [a claimant s] ability to work. 23 433 F.3d 683, 686-87 (9th Cir. 2005)(citation omitted); see Soc. Sec. 24 Ruling 85-28, 1985 WL 56856, at *3, 1985 SSR LEXIS 19, at *9 (stating 25 that [a] claim may be denied at step two only if . . . a finding [that 26 the 27 established by medical evidence )(emphasis added). The Ninth Circuit has held that this step two Smolen, 80 F.3d at 1290. relevant 20 C.F.R. §§ impairments are Accordingly, [a]n impairment or be found not severe only if the not 28 19 medically Webb v. Barnhart, severe] is clearly 1 The ALJ found that plaintiff has the severe impairments of diabetes 2 mellitus with peripheral neuropathy and recurrent abscesses. 3 the ALJ found plaintiff s subjective complaints of hand problems to be 4 not supported by the evidence of record. 5 found that plaintiff s hand problems no more than slightly limit his 6 ability to perform basic work activity. (A.R. 50-51.) Accordingly, the 7 ALJ concluded that plaintiff s hand problems are nonsevere. 8 51.) (A.R. 50.) However, The ALJ further (A.R. 9 10 Contrary to the ALJ s finding, and as plaintiff properly notes, the 11 evidence of record indicates that plaintiff has recurrent neuropathic 12 pain in his hands and/or fingers along with infections and abscesses. 13 (See, e.g., A.R. 414 (04/07 - severe hand and feet neuropathic pain, 14 discharged with mild improvement ); A.R. 796-97 (05/07 - plaintiff 15 complained of worsening pain in his hands and feet; physician opined 16 that plaintiff has peripheral neuropathy); A.R. 560-61, 570-71 (09/07 - 17 abscess on right fifth digit requiring surgery); A.R. 514-15, 520-21 18 (02/08 - soft tissue swelling of the left second finger; heavy 19 streptococcus growth); A.R. 609 (06/08 - [c]hronic painful peripheral 20 neuropathy secondary to diabetes ).) On multiple occasions, plaintiff s 21 treating doctor, Dr. Hernandez, opined that plaintiff has neuropathy in 22 his hands. 23 A.R. 817 (11/07 - peripheral neuropathy).) 24 2008 Questionnaire, Dr. Hernandez noted that plaintiff has neuropathy in 25 hands 26 reaching, handling, fingering, and lifting. 27 Hernandez described the pain that plaintiff experiences in his hands and 28 forearms as severe, chronic, burning, stabbing, and debilitating. (A.R. and (See, e.g., A.R. 835 (08/07 - polyneuropathy in hands); forearms, which limits 20 In fact, in her February plaintiff from doing repetitive (A.R. 505-06.) Dr. 1 503.) It does not appear, however, that the ALJ reviewed these findings 2 in determining that plaintiff s hand problems are not severe. 3 4 Accordingly, on remand, the ALJ needs to revisit the issue of 5 whether plaintiff suffers from a severe hand impairment. Specifically, 6 the ALJ needs to consider the aforementioned evidence and review and 7 reconsider properly the opinion of Dr. Hernandez and the testimony of 8 plaintiff regarding the pain and resulting limitations he experiences in 9 his hands. After so doing, the ALJ can determine what impact, if any, 10 this has on his assessment of whether plaintiff s hand problems 11 constitute a severe impairment. 12 13 IV. Remand Is Required. 14 15 The decision whether to remand for further proceedings or order an 16 immediate award of benefits is within the district court s discretion. 17 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 18 useful purpose would be served by further administrative proceedings, or 19 where the record has been fully developed, it is appropriate to exercise 20 this discretion to direct an immediate award of benefits. 21 ( [T]he decision of whether to remand for further proceedings turns upon 22 the likely utility of such proceedings. ). 23 outstanding issues that must be resolved before a determination of 24 disability can be made, and it is not clear from the record that the ALJ 25 would be required to find the claimant disabled if all the evidence were 26 properly evaluated, remand is appropriate. 27 /// 28 21 Where no Id. at 1179 However, where there are Id. at 1179-81. 1 Remand is the appropriate remedy to allow the ALJ the opportunity 2 to remedy the above-mentioned deficiencies and errors. See, e.g., 3 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 4 further proceedings is appropriate if enhancement of the record would be 5 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 6 (remand appropriate to remedy defects in the record). 7 ALJ must correct the above-mentioned deficiencies and errors and further 8 develop the record as appropriate. 9 reassess plaintiff s RFC, in which case additional testimony from a 10 vocational expert likely will be needed to determine what work, if any, 11 plaintiff can perform. On remand, the After doing so, the ALJ may need to 12 13 CONCLUSION 14 15 Accordingly, for the reasons stated above, IT IS ORDERED that the 16 decision of the Commissioner is REVERSED, and this case is REMANDED for 17 further proceedings consistent with this Memorandum Opinion and Order. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 20 copies of this Memorandum Opinion and Order and the Judgment on counsel 21 for plaintiff and for defendant. 22 23 24 LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: October 17, 2011 25 26 27 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 28 22

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