John Hugh Petty v. Michael J Astrue, No. 5:2010cv01725 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN HUGH PETTY, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 10-1725 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On November 22, 2010, plaintiff John Hugh Petty ( Plaintiff ) filed a 22 complaint against defendant Michael J. Astrue ( Defendant ), the Commissioner of 23 the Social Security Administration, seeking review of a denial of disability insurance 24 benefits ( DIB ) and supplemental security income benefits ( SSI ). [Docket No. 25 3.] 26 On May 19, 2011, Defendant filed his answer, along with a certified copy of 27 the administrative record. [Docket Nos. 12, 13, 14.] In sum, having carefully studied, inter alia, the parties joint stipulation and 28 1 the administrative record, the Court concludes that, as detailed below, the 2 Administrative Law Judge ( ALJ ) improperly discounted Plaintiff s subjective 3 complaints. The Court thus remands this matter to the Commissioner in accordance 4 with the principles and instructions enunciated in this Memorandum Opinion and 5 Order. 6 II. 7 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 53 years old on the date of his administrative hearing, has a 8 9 high school education. (See Administrative Record ( AR ) at 18, 44, 135.) On February 20, 2008, Plaintiff filed for DIB and SSI, alleging that he has 10 11 been disabled since February 4, 2008 due to a congestive heart failure and chronic 12 atrial fibrillation. (See AR at 116, 119, 135, 145.) On September 17, 2009, Plaintiff, represented by counsel, appeared and 13 14 testified at a hearing before an ALJ. (See AR at 18-46.) The ALJ also heard 15 testimony from Corinne Porter, a vocational expert ( VE ). (Id.) On November 10, 2009, the ALJ denied Plaintiff s request for benefits. (AR 16 17 at 10-17.) Applying the familiar five-step sequential evaluation process, the ALJ 18 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 19 his alleged onset date. (Id. at 12.) At step two, the ALJ found that Plaintiff suffers from severe impairments 20 21 consisting of atrial fibrillation; history of congestive heart failure; history of drug 22 abuse; history of burns on both forearms, and hypertension. (AR at 12 (emphasis 23 omitted).) At step three, the ALJ determined that the evidence did not demonstrate that 24 25 Plaintiff s impairments, either individually or in combination, meet or medically 26 equaled the severity of any listing set forth in the Social Security regulations.1/ (AR 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 1 at 21.) The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 2 3 determined that he can perform light work. (AR at 13.) The ALJ found, at step four, that Plaintiff lacks the ability to perform his past 4 5 relevant work as a pipe fitter, heavy equipment operator, construction worker, or 6 dishwasher. (AR at 16.) At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 7 8 that there are jobs that exist in significant numbers in the national economy that 9 [Plaintiff] can perform, including cashier, cleaner, and hand packager. (AR at 1610 17 (bold omitted).) Thus, the ALJ concluded that Plaintiff was not suffering from a 11 disability as defined by the Act. (Id. at 10, 17.) Plaintiff filed a timely request for review of the ALJ s decision, which was 12 13 denied by the Appeals Council. (AR at 1-3, 4.) The ALJ s decision stands as the 14 final decision of the Commissioner. 15 III. 16 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 17 18 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 19 Administration must be upheld if they are free of legal error and supported by 20 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 21 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 22 are based on legal error or are not supported by substantial evidence in the record, 23 24 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 the court may reject the findings and set aside the decision to deny benefits. 2 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 3 242 F.3d 1144, 1147 (9th Cir. 2001). 4 Substantial evidence is more than a mere scintilla, but less than a 5 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 6 evidence which a reasonable person might accept as adequate to support a 7 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 8 at 459. To determine whether substantial evidence supports the ALJ s finding, the 9 reviewing court must review the administrative record as a whole, weighing both 10 the evidence that supports and the evidence that detracts from the ALJ s 11 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 12 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 13 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 14 evidence can reasonably support either affirming or reversing the ALJ s decision, 15 the reviewing court may not substitute its judgment for that of the ALJ. Id. 16 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 17 IV. 18 ISSUES PRESENTED 19 Two disputed issues are presented for decision here: 20 1. whether the ALJ properly evaluated the opinion of Plaintiff s treating 21 physician, (see Joint Stip. at 4-7); and 22 2. whether the ALJ properly assessed Plaintiff s credibility. (Id. at 10-13.) 23 Under the circumstances here, the Court finds the issue of the ALJ s 24 evaluation of Plaintiff s credibility to be dispositive of this matter, and does not 25 reach the remaining issue. 26 / / / 27 / / / 28 4 1 V. 2 DISCUSSION AND ANALYSIS 3 A. Plaintiff s Credibility 4 Plaintiff argues that the ALJ has erred by failing to cite any clear and 5 convincing reasons to reject Plaintiff s subjective complaints other than to state that 6 in his opinion the Plaintiff s complaints are not supported by objective medical 7 evidence. (Joint Stip. at 12.) Plaintiff contends that the ALJ improperly 8 disregarded his complaints of shortness of breath, fatigue, and chest pain, [which] 9 would clearly require Plaintiff to experience numerous unscheduled work breaks 10 during the course of a given work week. (Id.) 11 1. Discounting Plaintiff s Credibility 12 13 The ALJ Must Provide Clear and Convincing Reasons For An ALJ can reject a plaintiff s subjective complaint upon (1) finding evidence 14 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton 15 v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider the 16 following factors in weighing a plaintiff s credibility: (1) his or her reputation for 17 truthfulness; (2) inconsistencies either in the plaintiff s testimony or between the 18 plaintiff s testimony and his or her conduct; (3) his or her daily activities; (4) his or 19 her work record; and (5) testimony from physicians and third parties concerning the 20 nature, severity, and effect of the symptoms of which she complains. Thomas v. 21 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 22 Here, the ALJ did not find evidence of malingering. (See generally AR at 10- 23 17.) Therefore, the ALJ s reasons for rejecting Plaintiff s credibility must rest on 24 clear and convincing reasons. See Benton, 331 F.3d at 1040. 25 26 2. The ALJ Improperly Rejected Plaintiff s Subjective Complaints After a careful review of the medical record and the joint stipulation, the 27 Court has considered the ALJ s sole reason for finding Plaintiff not credible, and 28 concludes that the ALJ has failed to provide legally sufficient justification for 5 1 discounting Plaintiff s credibility. 2 Here, the ALJ found that the objective medical evidence does not support 3 Plaintiff s alleged degree of disability. (AR at 14 ( While [Plaintiff] alleges he is 4 unable to perform work activity, his medical records do not contain objective clinical 5 evidence to support his assertion. ).) 6 In so finding, the ALJ noted that although Plaintiff was admitted to the 7 hospital from February 4, 2008 to February 9, 2008 for shortness of breath, his 8 condition was very well controlled during his hospitalization. (AR at 14; see also 9 id. at 169 (emergency department respiratory nursing assessment dated February 4, 10 2008 indicating severity scale of 2/10 ).) The ALJ also reported that [o]nce 11 [Plaintiff] was clinically stable he had no further complaints of any shortness of 12 breath or palpitations and was discharged home with medication. (Id. at 14; see 13 also id. at 162 (Barstow Community Hospital discharge summary dated February 9, 14 2008 reporting patient had no further complaints of any shortness of breath or 15 palpitation ).) The ALJ found Plaintiff s February 7, 2008 chest x-ray showed 16 improving congestive heart failure and he was discharged with no activity 17 restrictions. (Id. at 14; see also id. at 224 (radiology report of Plaintiff s chest 18 stating [t]here has been an improvement since the previous exam ).) 19 The Court agrees that there is no objective medical evidence in the record 20 supporting a more restrictive RFC than that determined by the ALJ.3/ (See generally 21 22 3/ Although the Court declines to address Plaintiff s claim that the ALJ 23 improperly evaluated the opinion of V.M. Padmanabha, M.D. ( Dr. Padmanabha ), 24 (see Joint Stip. at 4-7), the Court notes that his conclusory opinion that Plaintiff is totally and permanently disabled is not entitled to special significance. 25 Boardman v. Astrue, 286 Fed.Appx. 397, 399 (9th Cir. 2008) (unpublished 26 memorandum opinion) ( The ALJ is correct that a determination of a claimant s ultimate disability is reserved to the Commissioner, and that a physician s opinion 27 on the matter is not entitled to special significance. ). 28 In other words, Dr. Padmanabha s non-medical opinion that Plaintiff is unable 6 1 AR at 162-316; see, e.g., id. at 253 (April 12, 2008 emergency department treatment 2 note indicating Plaintiff s respiratory airway is clear, his effort is unlabored, and 3 he has no cough).) 4 Although the Court finds that substantial evidence supports the ALJ s 5 conclusion that the alleged severity of Plaintiff s symptoms is unsupported by the 6 objective medical evidence, a lack of objective evidence supporting Plaintiff s 7 symptoms cannot be the sole reason for rejecting Plaintiff s testimony. Rollins v. 8 Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). Because the ALJ failed to provide 9 legally sufficient reasons for rejecting Plaintiff s testimony, remand is warranted on 10 this issue. 11 VI. 12 REMAND IS APPROPRIATE 13 This Court has discretion to remand or reverse and award benefits. McAllister 14 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 15 useful purpose would be served by further proceedings, or where the record has been 16 fully developed, it is appropriate to exercise this discretion to direct an immediate 17 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 18 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 19 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 20 resolved before a determination can be made, and it is not clear from the record that 21 the ALJ would be required to find plaintiff disabled if all the evidence were properly 22 23 to work is not binding on the Commissioner. See Ukolov v. Barnhart, 420 F.3d 24 1002, 1004 (2005) ( Although a treating physician s opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the 25 existence of an impairment or the ultimate determination of disability. ); 20 C.F.R. 26 §§ 404.1527(e)(1) ( We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a 27 medical source that you are disabled or unable to work does not mean that we 28 will determine that you are disabled. ) & 416.927(e)(1) (same). 7 1 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 2 F.3d at 1179-80. 3 Here, there are outstanding issues which must be resolved before a final 4 determination can be made. On remand, the ALJ shall reconsider Plaintiff s 5 subjective complaints and the resulting functional limitations, and either credit 6 Plaintiff s testimony or provide clear and convincing reasons supported by 7 substantial evidence for rejecting them. In addition, if necessary, the ALJ shall 8 obtain additional information and clarification regarding Plaintiff s functional 9 limitations. The ALJ shall then proceed through steps four and five to determine 10 what work, if any, Plaintiff is capable of performing.4/ Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 11 12 REVERSING the decision of the Commissioner denying benefits and 13 REMANDING the matter for further administrative action consistent with this 14 decision. 15 16 Dated: August 11, 2011 17 ________________________________ 18 Hon. Jay C. Gandhi United States Magistrate Judge 19 20 21 22 23 24 25 26 27 4/ In light of the Court s remand instructions, it is unnecessary for the Court to 28 address Plaintiff s remaining contention. (See Joint Stip. at 4-7.) 8
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