Laura Sims v. Michael J Astrue, No. 5:2011cv00662 - Document 16 (C.D. Cal. 2012)
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 LAURA SIMS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 11-0662 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On April 27, 2011, plaintiff Laura Sims ( Plaintiff ) filed a complaint against 22 defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social Security 23 Administration, seeking review of a denial of disability insurance benefits ( DIB ) 24 and supplemental security income ( SSI ). [Docket No. 1.] On October 28, 2011, Defendant filed his answer, along with a certified copy 25 26 of the administrative record. [Docket Nos. 10, 11, 12.] In sum, having carefully studied, inter alia, the parties joint stipulation and 27 28 the administrative record, the Court concludes that, as detailed below, the 1 Administrative Law Judge ( ALJ ) improperly discounted Plaintiff s subjective 2 complaints. The Court thus remands this matter to the Commissioner in accordance 3 with the principles and instructions enunciated in this Memorandum Opinion and 4 Order. 5 II. 6 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 42 years old on the date of her most recent administrative 7 8 hearing, has completed two years of college. (See Administrative Record ( AR ) at 9 69, 81, 163, 171, 206.) On July 26, 2007, Plaintiff filed for SSI and DIB, alleging that she has been 10 11 disabled since November 6, 2005 due to severe back problems, impairments in her 12 left knee and foot, neck, arm, and shoulder pain, swelling in her hands, and a hernia. 13 (See AR at 120, 126, 163, 171, 199.) On July 10, 2009, Plaintiff, represented by counsel, appeared and testified at a 14 15 hearing before an ALJ. (AR at 69-115.) The ALJ also heard testimony from David 16 Rinehart, a vocational expert ( VE ). (Id.) On December 18, 2009, the ALJ denied Plaintiff s request for benefits. (AR 17 18 at 29-41.) Applying the familiar five-step sequential evaluation process, the ALJ 19 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 20 her alleged onset date. (Id. at 31.) At step two, the ALJ found that Plaintiff suffers from severe impairments of 21 22 disorder of the left knee and lumbar spine, a depressive disorder, and 23 fibromyalgia. (AR at 31 (bold omitted).) At step three, the ALJ determined that the evidence does not demonstrate that 24 25 Plaintiff s impairments, either individually or in combination, meet or medically 26 equal the severity of any listing set forth in the Social Security regulations.1/ (AR at 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 1 32.) The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 2 3 determined that she can perform light work except: 4 [Plaintiff] can occasionally climb ramps and stairs but cannot 5 climb ladders, ropes or scaffolds. She can frequently balance and 6 can occasionally bend, stoop[,] crouch and kneel. Mentally, she 7 cannot perform high-quota production-rate pace work or be 8 responsible for the safety of others. 9 (AR at 33 (bold omitted).) The ALJ found, at step four, that Plaintiff has the ability to perform her past 10 11 relevant work as a floor sales associate, administrative assistant and insurance 12 salesperson. (AR at 40-41.) Thus, the ALJ concluded that Plaintiff was not 13 suffering from a disability as defined by the Act. (Id. at 29, 41.) Plaintiff filed a timely request for review of the ALJ s decision, which was 14 15 denied by the Appeals Council. (AR at 17-19, 22.) The ALJ s decision stands as the 16 final decision of the Commissioner. 17 III. 18 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 19 20 benefits. 42 U.S.C. ยง 405(g). The findings and decision of the Social Security 21 Administration must be upheld if they are free of legal error and supported by 22 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 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 Cir. 28 2007). 3 1 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 2 are based on legal error or are not supported by substantial evidence in the record, 3 the court may reject the findings and set aside the decision to deny benefits. 4 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 5 242 F.3d 1144, 1147 (9th Cir. 2001). 6 Substantial evidence is more than a mere scintilla, but less than a 7 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 8 evidence which a reasonable person might accept as adequate to support a 9 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 10 at 459. To determine whether substantial evidence supports the ALJ s finding, the 11 reviewing court must review the administrative record as a whole, weighing both 12 the evidence that supports and the evidence that detracts from the ALJ s 13 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 14 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 15 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 16 evidence can reasonably support either affirming or reversing the ALJ s decision, 17 the reviewing court may not substitute its judgment for that of the ALJ. Id. 18 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 19 IV. 20 ISSUES PRESENTED 21 Three disputed issues are presented for decision here: 22 1. whether the ALJ properly evaluated Plaintiff s RFC, (see Joint Stip. at 23 4-7, 10-12); 24 2. whether the ALJ properly evaluated the medical evidence, (id. at 12-16, 25 24-25); and 26 3. whether the ALJ properly assessed Plaintiff s credibility. (Id. at 25-31, 27 36-37.) 28 Under the circumstances here, the Court finds the issue of the ALJ s 4 1 evaluation of Plaintiff s credibility to be dispositive of this matter, and does not 2 reach the remaining issues. 3 V. 4 DISCUSSION AND ANALYSIS 5 A. Plaintiff s Credibility 6 Plaintiff argues that the ALJ failed to articulate legally sufficient reasons for 7 rejecting [Plaintiff s] testimony. (Joint Stip. at 30.) 8 1. Discounting Plaintiff s Credibility 9 10 The ALJ Must Provide Clear and Convincing Reasons For An ALJ can reject a plaintiff s subjective complaint upon (1) finding evidence 11 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton 12 v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider the 13 following factors in weighing a plaintiff s credibility: (1) his or her reputation for 14 truthfulness; (2) inconsistencies either in the plaintiff s testimony or between the 15 plaintiff s testimony and his or her conduct; (3) his or her daily activities; (4) his or 16 her work record; and (5) testimony from physicians and third parties concerning the 17 nature, severity, and effect of the symptoms of which she complains. Thomas v. 18 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 19 Here, the ALJ did not find evidence of malingering. (See generally AR at 29- 20 41.) Therefore, the ALJ s reasons for rejecting Plaintiff s credibility must rest on 21 clear and convincing reasons. See Benton, 331 F.3d at 1040. 22 23 2. The ALJ Improperly Rejected Plaintiff s Subjective Complaints The Court finds that the ALJ s reasons for discounting Plaintiff s credibility 24 are not clear and convincing and/or are not supported by the record. Six reasons 25 guide this determination. 26 First, the ALJ erred to the extent he rejected Plaintiff s credibility based on a 27 lack of objective medical evidence. (See AR at 34 (ALJ finding assertion [of side 28 effects] is not supported by the record and no support in the medical records 5 1 regarding complaints of extreme fatigue), 35 ( The degree of [Plaintiff s] alleged 2 pain and dysfunction is not supported by the objective evidence. ).) Plaintiff 3 provided sufficient medical evidence of underlying impairments that are reasonably 4 likely to cause the symptoms she described. For instance: 5 1. MRI of the lumbar spine report, dated September 21, 2006, found 6 straightening of normal lordotic curvature, a disk desiccation with suggestion of 7 an annular fissure and 3mm broad-based posterior disk protrusion at L4-L5 level 8 causing pressure over the anterior aspect of the thecal sac, a 5mm broad-based 9 posterior disk/endplate osteophyte complex at L5-S1 level indenting the anterior 10 aspect of the thecal sac, and mild narrowing of the right neural foramen and 11 moderately significant narrowing of the left neural foramen. (Id. at 483-84.) 12 2. Emergency room report, dated September 25, 2006, described Plaintiff 13 is complaining of low back pain. (Id. at 480.) 14 3. A physical therapy treatment note, dated January 4, 2007, indicated 15 Plaintiff is describing pain of 10/10. (Id. at 293.) 16 4. Operation report, dated May 25, 2007, reported Plaintiff suffers from a 17 [f]racture of the lateral fragment of the left patella with a step off small fragment, 18 painful. (Id. at 339-40.) 19 5. Treatment note, dated April 1, 2008, indicated Plaintiff still has a lot of 20 back and muscle pain and gets a lot of fatigue and has had a sleep walking side 21 effect with the [A]mbien. (Id. at 582.) 22 6. Treatment note, dated May 29, 2009, reported a diagnosis of 23 fibromyalgia and noted Plaintiff s muscles are chronically in pain. (Id. at 561-63.) 24 7. Treatment note, dated June 29, 2009, reported that Plaintiff continues 25 to have lots of muscular pain and fatigue and feels very lethargic throughout the 26 day. (Id. at 592-94.) 27 8. Medical source statement completed by treating physician, dated July 8, 28 2009, identified that Plaintiff suffers from fibromyalgia and her symptoms include 6 1 chronic fatigue and sleep difficult[ies]. (Id. at 585-91.) 2 Because Plaintiff produced sufficient medical evidence of underlying 3 impairments that are likely to cause back pain and other subjective symptoms, the 4 ALJ erred to the extent he rejected Plaintiff s credibility based upon a lack of 5 objective findings to support her allegations. See Bunnell v. Sullivan, 947 F.2d 341, 6 345 (9th Cir. 1991) (en banc) ( [O]nce the claimant produces objective medical 7 evidence of an underlying impairment, [the ALJ] may not reject a claimant s 8 subjective complaints based solely on a lack of objective medical evidence to fully 9 corroborate the alleged severity of pain. ); Social Security Ruling ( SSR ) 96-7P,3/ 10 1996 WL 374186, at *1 ( An individual s statements about the intensity and 11 persistence of pain or other symptoms or about the effect the symptoms have on his 12 or her ability to work may not be disregarded solely because they are not 13 substantiated by objective medical evidence. ). Second, the ALJ rejected Plaintiff s credibility because she has a pecuniary 14 15 interest in the outcome of the hearing or is otherwise motivated by secondary 16 gain[.] (AR at 34.) However, without more, a claimant s financial motivation for 17 obtaining benefits is not a valid reason for discrediting the testimony of the claimant. 18 See Ratto v. Sec y, Dept. of Health & Human Servs., 839 F. Supp. 1415, 1428-29 19 (D. Or. 1993) ( If the desire or expectation of obtaining benefits were by itself 20 sufficient to discredit a claimant s testimony, then no claimant (or their spouse, or 21 friends, or family) would ever be found credible. ). On the other hand, an ALJ is 22 23 24 25 26 27 3/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 28 7 1 not required to ignore evidence suggesting that the testimony of a claimant is 2 motivated by financial reasons independent of any legitimate claim of entitlement to 3 benefits. See Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996) (holding that there 4 was a strong element of secondary gain in this case justifying the ALJ s negative 5 credibility finding where the claimant sued his employer only after private benefits 6 were terminated and said he planned to work only until his lawsuit settled). The 7 Court could not find, nor does the ALJ cite to any, support for the inference that 8 Plaintiff had a specific pecuniary motive independent of any legitimate claim of 9 entitlement which would undermine her credibility. Accordingly, the ALJ s 10 rejection of Plaintiff s subjective complaints based on this reason is not supported by 11 substantial evidence. 12 Third, the ALJ s discounting of Plaintiff s credibility because her 13 communications with her treating physicians have not always been solely for the 14 purpose of treatment is not a clear and convincing reason. (AR at 35.) The ALJ 15 found Plaintiff s testimony that she instructed her doctor to make sure he included 16 in his report a specific comment about her trigger points a reference to an 17 essential element in the diagnosis of fibromyalgia undermined her credibility. (Id.; 18 see also id. at 111 (Plaintiff stating, I told [my treating physician] I needed a list of 19 where the trigger points were for the Court ).) However, the Court fails to see how 20 Plaintiff s credibility is somehow diminished by requesting her treating physician 21 David Perz, D.O. ( Dr. Perz ) to clearly state her symptoms while completing a 22 Medical Source Statement which was being submitted to the Social Security 23 Administration, especially in light of the fact that Plaintiff carries the burden of 24 producing objective medical evidence of her impairments and showing that the 25 impairments could reasonably be expected to produce some degree of the alleged 26 symptoms. Benton, 331 F.3d at 1040. 27 Fourth, the ALJ s rejection of Plaintiff s credibility based on her daily 28 activities is not supported by substantial evidence. The ALJ found that 8 1 [Plaintiff s] activities of daily living do not appear 2 significantly limited. She dresses and bathes herself, runs 3 errands, goes to the store, cooks, makes snacks and helps with 4 household chores, but alleges that her children and parents help 5 her with these activities. She drives her own car for 6 transportation. She can leave home alone, handle her own cash, 7 and pay her own bills. 8 (AR at 35 (citations omitted).) However, the ALJ s paraphrasing of Plaintiff s daily 9 activities is not entirely accurate. See Reddick, 157 F.3d at 722-23 ( [T]he ALJ 10 developed his evidentiary basis by not fully accounting for the context of materials 11 or all parts of the testimony and reports. His paraphrasing of record material is not 12 entirely accurate regarding the content or tone of the record. ). For instance, 13 Plaintiff explained that she drives once a week, maybe if that and that she has 14 good and bad days which determine the amount of activity she can perform. (Id. 15 at 75, 94-95.) 16 In any event, the ALJ fails to demonstrate how Plaintiff s ability to perform 17 certain daily activities translates into an ability to work. See Gonzalez v. Sullivan, 18 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ errs in failing to make a finding to the 19 effect that ability to perform daily activities translated into the ability to perform 20 appropriate work); Reddick, 157 F.3d at 722 (only if a plaintiff s level of activity is 21 inconsistent with her alleged limitations will these activities have any bearing on 22 claimant s credibility); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 23 2001) ( This court has repeatedly asserted that the mere fact that a plaintiff has 24 carried on certain daily activities, such as grocery shopping, driving a car, or limited 25 walking for exercise, does not in any way detract from her credibility as to her 26 overall disability. ). 27 Fifth, the ALJ disregarded Plaintiff s subjective complaints because she has 28 improved with treatment. (AR at 36 (ALJ rejecting Plaintiff s credibility because 9 1 there is indication in the record that she derives some benefit from fibromyalgia 2 pain medication . . . and that an inferential electrical stimulator was helpful in 3 reducing pain ).) This reason is also not supported by substantial evidence. While 4 Dr. Perz noted on May 29, 2009 that Plaintiff has had some benefit from the 5 fibromyalgia pain medicine, he also reported that she is still hurting a lot in the 6 legs and back. (Id. at 561.) Further, although a physical therapy treatment note 7 indicated Interferential Electrical Stimulation . . . has been helpful to pain 8 reduction, this treatment note was dated January 8, 2007, months prior to Plaintiff 9 fracturing her left kneecap in April of 2007. (See id. at 295, 424-29.) Moreover, 10 subsequent to January of 2007, numerous treatment notes report Plaintiff continued 11 to experience pain and she was not diagnosed with fibromyalgia until 2009. (See, 12 e.g., id. at 561-84.) 13 Lastly, the ALJ observed during the hearing [that Plaintiff sat] as much as 50 14 minutes at a time without changing positions, despite testimony that the maximum 15 amount of time that she is able to sit at one time is 15 minutes. (AR at 34.) The 16 ALJ also found that according to the testimony during the hearing, [Plaintiff] 17 traveled by automobile to the hearing site; the trip lasted 45 minutes[] and . . . was 18 non-stop and he observed [Plaintiff] throughout the hearing . . . [and she] appeared 19 to be alert and did not appear to be drowsy or sleepy. 4/ (Id. at 34-35.) The Court 20 concludes that the ALJ properly considered Plaintiff s demeanor during the hearing. 21 However, an ALJ s personal observations, standing alone, cannot support a 22 determination that a claimant is not credible, although they may form part of that 23 24 4/ The Court notes that the hearing transcript reflects that, at least on one 25 occasion, Plaintiff changed positions during the hearing by leaning over the table 26 and she testified that she laid in the car on the drive to the hearing. (AR at 74-75 (Plaintiff s testimony that she laid in the back of her [friend s] car on the drive to 27 the hearing), 96 (Plaintiff s testimony that she can be like leaning over the table or 28 a counter [which] is actually the best, next to laying flat ).) 10 1 determination. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (ALJ s 2 observations of a claimant s functioning at the hearing are permissible as part of 3 the overall credibility assessment but may not form the sole basis for discrediting a 4 person s testimony ). 5 VI. 6 REMAND IS APPROPRIATE 7 This Court has discretion to remand or reverse and award benefits. McAllister 8 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 9 useful purpose would be served by further proceedings, or where the record has been 10 fully developed, it is appropriate to exercise this discretion to direct an immediate 11 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 12 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 13 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 14 resolved before a determination can be made, and it is not clear from the record that 15 the ALJ would be required to find plaintiff disabled if all the evidence were properly 16 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 17 F.3d at 1179-80. 18 Here, there are outstanding issues which must be resolved before a final 19 determination can be made. On remand, the ALJ shall reconsider Plaintiff s 20 subjective complaints and the resulting functional limitations, and either credit 21 Plaintiff s testimony or provide clear and convincing reasons supported by 22 substantial evidence for rejecting them. In addition, the ALJ shall reassess the 23 medical opinions in the record regarding Plaintiff s physical and mental impairments 24 and provide sufficient reasons under the applicable legal standard for rejecting any 25 portion of the medical opinions. If necessary, the ALJ shall obtain additional 26 information and clarification regarding Plaintiff s limitations. The ALJ shall then 27 proceed through steps four and five to determine what work, if any, Plaintiff is 28 11 1 capable of performing.5/ Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 2 3 REVERSING the decision of the Commissioner denying benefits and 4 REMANDING the matter for further administrative action consistent with this 5 decision. 6 7 Dated: March 6, 2012 8 ____________________________________ 9 Hon. Jay C. Gandhi 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5/ In light of the Court s remand instructions, it is unnecessary for the Court to 28 address Plaintiff s remaining contentions. (See Joint Stip. at 4-7, 10-16, 24-25.) 12
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