Nadine Pardue v. Michael J Astrue, No. 5:2010cv01830 - Document 15 (C.D. Cal. 2011)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge David T Bristow. Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings. (See document for specifics) (mrgo)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 NADINE PARDUE, ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) Case No. EDCV 10-1830-DTB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 16 17 Plaintiff filed a Complaint ( Complaint ) on November 29, 2010, seeking 18 review of the Commissioner s denial of her application for Supplemental Security 19 Income. In accordance with the Magistrate Judge s Case Management Order, the 20 parties filed a Joint Stipulation ( Jt. Stip. ) on July 28, 2011. Thus, this matter now 21 is ready for decision.1 22 /// 23 /// 24 25 1 As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record 27 ( AR ), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) 28 of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 DISPUTED ISSUES 1 2 As reflected in the Joint Stipulation, the disputed issues here are as follows: 3 1. 4 plaintiff s credibility regarding excess pain. (Jt. Stip. 4-24.) 2. 5 6 Whether the ALJ properly considered plaintiff s residual functional capacity ( RFC ). (Jt. Stip. 24-27.) 3. 7 8 Whether the Administrative Law Judge ( ALJ ) properly evaluated Whether the ALJ properly considered vocational expert ( VE ) testimony about work in the national economy. (Jt. Stip. 27-32.) 9 DISCUSSION 10 11 I. Reversal is warranted based on the ALJ s credibility evaluation. 12 During the administrative hearing, plaintiff testified that she stopped working 13 in December 2005 due to a vision problem caused when her eye exploded after a 14 thorn from a creosote bush entered her retina in 1994. (AR 24-25, 28.) Plaintiff 15 testified that she lived with the pain from that incident for many years before having 16 surgery to remove the eye in 2007 and that since the surgery, she experiences bad 17 pain below her left eye [j]ust about every day, and takes bottles and bottles of 18 pain medication to treat it. (AR 28-29.) Plaintiff described the pain she experiences 19 in her right hip and leg area due to having an extra bone in her spine as like a 20 hammer hitting you or something like throbbing pain. (AR 31.) As a result of her 21 impairments, plaintiff testified that (i) she spends much of her day in bed, (ii) can 22 only stand for 30 minutes at a time, (iii) has difficulty sitting for long periods of time 23 because of the pain in her foot and leg and because her right leg and foot often fall 24 asleep when she sits, (iv) suffers feelings of depression, and (v) is able to do hardly 25 any chores around the house. (AR 30, 32, 34, 36.) 26 In the administrative decision, the ALJ found that while plaintiff s medically 27 determinable impairments could reasonably be expected to cause her symptoms, her 28 statements regarding the intensity, persistence and limiting effects of her symptoms 2 1 are not credible to the extent they are inconsistent with the [ALJ s RFC] 2 assessment. (AR 14.) The ALJ cited the following reasons for discounting 3 plaintiff s subjective pain testimony: (i) While plaintiff testified that she cannot stand 4 for longer than 30 minutes and that when she sits, her leg and foot fall asleep, 5 plaintiff also admitted that her symptoms are relieved when she elevates her leg; (ii) 6 plaintiff s various activities (going outside two-to-three times a day, preparing frozen 7 dinners, grocery shopping with her roommate, riding in a car, and playing basketball 8 with her son) are inconsistent with plaintiff s allegations that she is unable to do 9 things for herself, has to lie down and rest all day and passes out if she bends, lifts, 10 or walks, is not able to cook or drive, and cannot watch television, read, write or use 11 a computer; (iii) plaintiff s testimony that she has only an 8th grade education is 12 inconsistent with her assertion in her Disability Report that she completed the 11th 13 grade; and (iv) a Social Security Officer reported that plaintiff had no observable 14 problems with reading, concentrating, answering, sitting, standing, walking or using 15 her hands. (AR 13-14.) 16 Plaintiff asserts that this credibility evaluation was not supported by substantial 17 evidence because none of [p]laintiff s statements about her daily activities were 18 inconsistent with her testimony about her impaired abilities to sit, stand, and walk. 19 (Jt. Stip. 7.) This argument is supported by the record and warrants reversal of the 20 Commissioner s decision. 21 Generally, questions of credibility and resolution of conflicts in the testimony 22 are functions solely for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) 23 (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). To determine 24 whether a claimant s subjective symptom testimony is credible, the ALJ must engage 25 in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 26 2007). First, the ALJ must determine whether the claimant has presented objective 27 medical evidence of an underlying impairment which could reasonably be expected 28 to produce the pain or other symptoms alleged. Id. at 1036 (quoting Bunnell v. 3 1 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant 2 meets this first test, and there is no evidence of malingering, the ALJ can reject the 3 claimant s testimony about the severity of [his] symptoms only by offering specific, 4 clear and convincing reasons for doing so. Id. (quoting Smolen v. Chater, 80 F.3d 5 1273, 1282 (9th Cir. 1996)). An ALJ must specifically identify the testimony found 6 not credible and explain what evidence undermines the testimony. Parra, 481 F.3d 7 at 750 (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). Because plaintiff s 8 record includes objective medical evidence establishing that he suffers from 9 impairments that could reasonably produce the symptoms of which he complains, and 10 there was no affirmative evidence of malingering, the clear and convincing 11 standard applies here. See Carmickle v. Comm r. Soc. Sec. Admin., 533 F.3d 1155, 12 1160 (9th Cir. 2008). 13 Under this standard, the reasons provided by the ALJ to discount plaintiff s 14 credibility were not clear and convincing. The ALJ improperly discounted plaintiff s 15 subjective pain testimony as being inconsistent with her daily activities. See Thomas 16 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the 17 claimant s testimony and the claimant s conduct supported rejection of the claimant s 18 credibility); Verduzco v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies 19 between claimant s testimony and actions cited as a clear and convincing reason for 20 rejecting the claimant s testimony). The mere fact that plaintiff carries on basic, 21 everyday activities while at home does not, and should not, detract from her 22 credibility, especially when there is no indication these activities take up a substantial 23 part of plaintiff s day. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) 24 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ( One does not need to be 25 utterly incapacitated in order to be disabled. ) Further, there is no indication that 26 any of plaintiff s activities are transferable to the work setting with regard to the 27 impact of pain. Vertigan, 260 F.3d at 1050. The ALJ s assertion that plaintiff goes 28 outside two-to-three times per day is of little significance, since plaintiff stated that 4 1 she only goes out to her yard, and that she can no longer walk any further because she 2 previously passed out a couple of times in the desert while out on walks. (AR 14, 3 36, 154.) Further, the ALJ s assertion that plaintiff prepares frozen dinners has little 4 bearing since, as plaintiff noted in the Joint Stipulation, preparing a frozen dinner in 5 the microwave is hardly akin to actual cooking, and thus it says little about plaintiff s 6 functional capabilities. (AR 14.) (Jt. Stip. 13.) The ALJ s assertion that plaintiff 7 played basketball with her son is belied by plaintiff s implication that this was a one- 8 time occurrence, roughly three months prior to the hearing, and that while she tries 9 to engage with her son, her son does not enjoy his time with her because she sleeps 10 a lot when he comes to visit. (AR 13, 37, 45.) The ALJ s assertion that plaintiff is 11 able to go the grocery store is likewise belied by plaintiff s testimony that she can 12 only do so with help. (AR 14, 38.) As such, little if any evidence in the record 13 supports the ALJ s finding that plaintiff lacked credibility because of her daily 14 activities. 15 The ALJ s other assertions regarding internal inconsistencies within plaintiff s 16 own statements and between plaintiff s statements and plaintiff s conduct are likewise 17 without merit. See Light v. Soc. Sec. Admin, 119 F.3d 789, 792 (9th Cir.), as 18 amended (1997) (in weighing plaintiff s credibility, ALJ may consider 19 inconsistencies either in [plaintiff s] testimony or between his testimony and his 20 conduct ). The ALJ s assertion that plaintiff s leg pain is relieved by elevating her 21 leg is belied by the fact that while plaintiff testified that elevating her leg does 22 help relieve her pain, she did not state that elevating her leg relieves the pain 23 altogether. (AR 13, 33.) Further, the ALJ noted the conflict between plaintiff s 24 hearing testimony, where she testified that she only went to school through the 8th 25 grade, and plaintiff s Disability Report, where she stated that she went to school 26 through the 11th grade. (AR 14, 27, 148.) However, the ALJ failed to provide clear 27 and convincing reasons why this seemingly innocuous discrepancy, in and of itself, 28 gave him reason to doubt plaintiff s credibility. Finally, the ALJ cited to the opinion 5 1 of a Social Security Officer who, on July 25, 2008, noted in the pre-printed form that 2 plaintiff had no observable problems with reading, concentrating, answering, 3 sitting, standing, walking or using her hands. (AR 14, 167.) However, the ALJ s 4 observation is belied by the fact that he neglected to mention that the same Social 5 Security Officer also observed that the plaintiff had difficulty seeing, and in the 6 observations portion of the interview noted that [plaintiff s] right eye was very red 7 and irritated . . . [and] . . . watery and she stated that her vision is very blurry . . . 8 (AR 14, 167.) 9 In sum, the Commissioner s adverse credibility finding is not supported by 10 clear and convincing reasons. See Lingenfelter, 504 F.3d at 1035-36. Accordingly, 11 reversal is required. 12 13 II. Reversal is warranted based on the ALJ s RFC determination. 14 Following the Step Three finding, the ALJ determined that plaintiff had an 15 RFC to perform significant light work, with the pertinent exception that plaintiff 16 cannot see fine print without a magnifying glass. (AR 12.) The ALJ included this 17 same limitation in the hypothetical he posed to the VE, noting that the hypothetical 18 individual [has] no vision in the left eye, and can t see the fine print without a 19 magnifying glass . . . (AR 46.) 20 RFC measures what a claimant can still do despite existing exertional 21 (strength-related) and nonexertional limitations. Valentine v. Comm r, Soc. Sec. 22 Admin., 574 F.3d 685, 689 (9th Cir. 2009); Frost v. Barnhart, 314 F.3d 359, 366 (9th 23 Cir. 2002); Cooper v. Sullivan, 880 F.2d 1152, 1155, n.5 (9th Cir. 1989). An RFC 24 assessment must take into account all of a claimant s medically determinable 25 impairments and their resulting symptoms. Light, 119 F.3d at 793 ( In determining 26 [a claimant s] [RFC], the ALJ must consider . . . the aggregate of [his or her] mental 27 and physical impairments. ); Social Security Ruling ( SSR ) 96-8p, 1996 SSR 28 /// 6 1 LEXIS 5 at *13, 1996 WL 374184 at *5 ( The RFC assessment must be based on all 2 of the relevant evidence in the case record. ) 3 Plaintiff s claim in Disputed Issue Two is that the ALJ s RFC determination 4 is erroneous because there is no evidence in the record supporting the ALJ s assertion 5 that plaintiff can read fine print even with a magnifying glass, an assertion the ALJ 6 also included in the hypothetical question he posed to the VE. (Jt. Stip. 24.) In fact, 7 plaintiff testified that when she tries to read a newspaper, she can only read for five 8 minutes before [her] eye starts jumping, suggesting a more severe visual 9 impairment than that suggested by the ALJ in his RFC determination. (AR 42.); SSR 10 96-8p, 1996 SSR LEXIS 5 at *13-14, 1996 WL 374184 at *5 (The RFC assessment 11 must be based on all the evidence in the case record, and the ALJ must consider all 12 allegations of limitations and restrictions.) Not only did the ALJ err when he reached 13 an RFC determination with no basis in the record, the ALJ also erred when he used 14 the same baseless visual limitation in his hypothetical to the VE. Valentine, 574 F.3d 15 at 690 (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) ( The 16 hypothetical an ALJ poses to a [VE], which derives from the RFC, must set out all 17 the limitations and restrictions of the particular claimant. ) Because plaintiff s 18 testimony about her sight impairment suggests a greater limitation than the one raised 19 by the ALJ in his hypothetical to the VE, the VE s opinion has no evidentiary value. 20 See Tackett v. Comm r, Soc. Sec. Admin., 180 F.3d 1094, 1101 (9th Cir. 1999); see 21 also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (finding material 22 error where the ALJ posed an incomplete hypothetical question to the vocational 23 expert which ignored improperly-disregarded testimony suggesting greater 24 limitations); Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) ( If the record does 25 not support the assumptions in the hypothetical, the vocational expert s opinion has 26 no evidentiary value. ). 27 /// 28 /// 7 1 III. The ALJ erred in his determination that plaintiff could perform the job 2 of cleaner. 3 As part of his RFC determination, the ALJ also noted that plaintiff cannot 4 have contact with the public and [she] can have occasional contact with supervisors 5 and coworkers. (AR 12.) The VE testified that a person with plaintiff s limitations 6 and transferable skills could work as a cleaner, housekeeping (Dictionary of 7 Occupational Titles ( DOT ) § 323.687-014) and affirmed that her testimony was 8 consistent with the description of that job in the DOT. (AR 46-49.) The ALJ adopted 9 the testimony of the VE to determine that plaintiff could perform work in the national 10 economy and therefore was not disabled. (AR 17.) 11 In Disputed Issue Three, plaintiff asserts that the ALJ s determination was 12 erroneous because plaintiff s functional limitation against having contact with the 13 public creates an unresolved conflict with the DOT s description for the job of 14 cleaner, housekeeping. (Jt. Stip. 27-29.) In particular, plaintiff points out that the 15 job requires plaintiff to render[] personal assistance to patrons. (Jt. Stip. 28.) In 16 light of this requirement, plaintiff argues that performance of this job conflicts with 17 plaintiff s limitation against having contact with the public. Id. This argument also 18 warrants reversal of the Commissioner s decision. 19 At Step Five of the sequential evaluation, the burden of proof shifts to the 20 Commissioner to identify specific jobs existing in substantial numbers in the national 21 economy that the claimant can perform despite his identified limitations. Johnson v. 22 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). One method of demonstrating the 23 existence of these jobs is through the testimony of a VE, who can assess the effect of 24 any limitation on the range of work at issue, identify jobs which are within the RFC, 25 if they exist, and provide a statement of the incidence of such jobs in the region where 26 the claimant lives or in several regions of the country. Social Security Ruling 27 ( SSR ) 83-12, 1983 WL 31253 at 3. On the other hand, in making disability 28 determinations, the Commissioner relies primarily on the DOT for information about 8 1 the requirements of work in the national economy. Massachi v. Astrue, 486 F.3d at 2 1149, 1153 (9th Cir. 2007) (quoting SSR 00-4p at 2) (internal quotation marks 3 omitted). Accordingly, where there is a contradiction between the testimony of the 4 VE and the DOT, the ALJ may not rely on the VE s testimony unless the record 5 contains persuasive evidence to support the deviation. Id. at 1152 (citing Johnson, 6 60 F.3d at 1435). 7 Based in part on the VE s testimony, the ALJ determined that plaintiff had an 8 RFC for significant light work, with the pertinent exception that plaintiff cannot 9 have contact with the public and [plaintiff] can have occasional contact with 10 supervisors and coworkers. (AR 12.) The VE testified that in light of plaintiff s 11 identified limitations, she could perform the job of cleaner. (AR 47.) As plaintiff 12 notes, the DOT description for the job of cleaner requires the employee to render[] 13 personal assistance to patrons, which appears to conflict with plaintiff s limitation 14 against having contact with the public. (Jt. Stip. 28.) Neither the VE nor the ALJ 15 attempted to explain or justify this apparent deviation in any manner. 16 Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) (ALJ erred in finding that 17 claimant could return to past relevant work based on VE s testimony that deviated 18 from the DOT because ALJ did not identify what aspect of the VE s experience 19 warranted deviation from the DOT, and did not point to any evidence in the record 20 other than the VE s sparse testimony . . . ) For this reason, the VE s testimony, 21 which the ALJ adopted, could not serve as substantial evidence supporting the ALJ s 22 Step Five determination. See 23 24 ORDER 25 The law is well established that the decision whether to remand for further 26 proceedings or simply to award benefits is within the discretion of the Court. See, 27 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 28 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 9 1 1981). Remand for the payment of benefits is appropriate where no useful purpose 2 would be served by further administrative proceedings, Benecke v. Barnhart, 379 3 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, Hoffman 4 v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 5 unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 6 (9th Cir. 1985) (per curiam) (as amended). 7 This is not an instance where no useful purpose would be served by further 8 administrative proceedings. The current record does not mandate a determination of 9 disability, and outstanding issues remain before such a determination can be made. 10 As such, remand for further administrative proceedings is appropriate. See Bunnell 11 v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003); Connett, 340 F.3d at 875. 12 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS 13 ORDERED that Judgment be entered reversing the decision of the Commissioner of 14 Social Security and remanding this matter for further administrative proceedings. 15 16 DATED: November 14, 2011 17 18 19 DAVID T. BRISTOW UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 10

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