Steven Watson v. Michael J Astrue, No. 5:2011cv01123 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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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 STEVEN WATSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-01123-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on July 21, 2011, seeking review of the 19 denial of plaintiff s application for a period of disability, disability 20 insurance benefits ( DIB ), and supplemental security income ( SSI ). 21 On August 18, 2011, the parties consented, pursuant to 28 U.S.C. 22 § 636(c), to proceed before the undersigned United States Magistrate 23 Judge. The parties filed a Joint Stipulation on April 24, 2012, in 24 which: plaintiff seeks an order reversing the Commissioner s decision 25 and 26 administrative proceedings; and the Commissioner requests that his 27 decision 28 administrative proceedings. awarding be benefits affirmed or, or, alternatively, alternatively, remanding remanded for for further further 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On January 18, 2008, plaintiff filed an application for a period of 4 disability, DIB, and SSI. (Administrative Record ( A.R. ) 10.) 5 Plaintiff, who was born on July 24, 1964 (A.R. 15),1 claims to have been 6 disabled since June 1, 1993 (A.R. 10), due to epilepsy (A.R. 51). 7 8 After the Commissioner denied plaintiff s claim initially and upon 9 reconsideration (A.R. 10, 55-59, 61-65), plaintiff requested a hearing 10 (A.R. 66). On May 27, 2010, plaintiff, who was represented by Mark 11 Tunnell, an 12 Administrative Law Judge Michael J. Kopicki (the ALJ ). 13 50.) 14 16, 2010, the ALJ denied plaintiff s claim (A.R. 10-20), and the Appeals 15 Council subsequently denied plaintiff s request for review of the ALJ s 16 decision (A.R. 1-4). attorney, appeared and testified at a Vocational expert Howard Goldfarb also testified. hearing before (A.R. 10, 21(Id.) On June That decision is now at issue in this action. 17 18 SUMMARY OF ADMINISTRATIVE DECISION 19 20 The ALJ found that plaintiff met the insured status requirements of 21 the Social Security Act through June 30, 1993. (A.R. 12.) 22 found that plaintiff has not engaged in substantial gainful activity 23 since June 1, 1993, the alleged onset date. 24 that plaintiff has the severe impairment of seizure disorder. 25 The ALJ found, however, that plaintiff does not have an impairment or (Id.) The ALJ also The ALJ determined (Id.) 26 27 28 1 On the alleged disability onset date, plaintiff was 28 years old, which is defined as a younger individual. (A.R. 15.; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 combination of impairments that meets or medically equals one of the 2 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 3 C.F.R. 4 416.926). §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, (A.R. 13.) 5 6 After reviewing the record, the ALJ determined that plaintiff has 7 the residual functional capacity ( RFC ) to perform medium work as 8 defined 9 Specifically, the ALJ found that plaintiff: in 20 C.F.R. §§ 404.1567(c) and 416.967(c). (A.R. 13.) 10 11 can lift and/or carry 50 pounds occasionally and 25 pounds 12 frequently, stand and/or walk (with normal breaks) for a total 13 of six hours in an eight-hour workday, sit (with normal 14 breaks) for a total of six hours in an eight-hour workday, 15 cannot climb ladders, ropes, or scaffolds, must avoid work at 16 unprotected heights and moving/dangerous machinery, cannot 17 operate a motor vehicle as a function of job duties, and 18 cannot use power tools. 19 20 (Id.) 21 22 The ALJ concluded that plaintiff is able to perform his past 23 relevant work as a telephone solicitor.2 (A.R. 15.) Additionally, based 24 on his RFC assessment and after having considered plaintiff s age, 25 26 27 28 2 The ALJ noted that the vocational expert found that plaintiff has past relevant work as a stock clerk and telephone solicitor. (A.R. 15.) 3 1 education,3 work experience, and the testimony of the vocational expert, 2 the ALJ found that jobs exist in the national economy that plaintiff 3 could perform, including: 4 (A.R. 15-16.) 5 been under a disability, as defined in the Social Security Act, from 6 June 1, 1993, through the date of his decision. packer ; clothing marker ; and laborer. Accordingly, the ALJ concluded that plaintiff has not (A.R. 16.) 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). 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. While inferences from the 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 Desrosiers v. Sec y of 27 3 28 The ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 15.) 4 1 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The ALJ is 2 responsible for determining credibility, resolving conflicts in medical 3 testimony, and for resolving ambiguities. 4 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 5 6 The Court will uphold the Commissioner s decision when the evidence 7 is susceptible to more than one rational interpretation. Burch v. 8 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 9 review only the reasons stated by the ALJ in his decision and may not However, the Court may 10 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 11 at 630; see also Connett, 340 F.3d at 874. 12 the Commissioner s decision if it is based on harmless error, which 13 exists only when it is clear from the record that an ALJ s error was 14 inconsequential to the ultimate nondisability determination. Robbins 15 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 16 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 17 at 679. The Court will not reverse 18 19 DISCUSSION 20 21 Plaintiff claims that credibility; the and ALJ: (2) (1) improperly evaluated improperly determined that 22 plaintiff s the 23 vocational expert s ( VE ) testimony was consistent with the Dictionary 24 of Occupational Titles ( DOT ). 25 2-15.) 26 /// 27 /// 28 /// (Joint Stipulation ( Joint Stip. ) at 5 1 I. The ALJ Failed To Give Clear And Convincing Reasons For 2 Finding Plaintiff s Testimony To Be Not Credible. 3 4 Once a disability claimant produces objective medical evidence of 5 an underlying impairment that is reasonably likely to be the source of 6 claimant s subjective symptom(s), all subjective testimony as to the 7 severity of the symptoms must be considered. 8 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 9 (9th Cir. 1991); see also 20 C.F.R. §§ Moisa v. Barnhart, 367 404.1529(a), 416.929(a) 10 (explaining how pain and other symptoms are evaluated). 11 ALJ makes 12 thereof, he or she may only find an applicant not credible by making 13 specific findings as to credibility and stating clear and convincing 14 reasons for each. 15 considered in weighing a claimant s credibility include: 16 claimant s reputation for truthfulness; (2) inconsistencies either in 17 the claimant s testimony or between the claimant s testimony and her 18 conduct; (3) the claimant s daily activities; (4) the claimant s work 19 record; and (5) testimony from physicians and third parties concerning 20 the nature, severity, and effect of the symptoms of which the claimant 21 complains. 22 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). a finding of malingering based on Robbins, 466 F.3d at 883. [U]nless an affirmative evidence The factors to be (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 23 24 The ALJ found that plaintiff s medically determinable impairments 25 could reasonably be expected to cause the alleged symptoms. (A.R. 13.) 26 Further, 27 Accordingly, the ALJ s reason for rejecting plaintiff s credibility must 28 be clear and convincing. the ALJ cited no evidence 6 of malingering by plaintiff. 1 The ALJ stated that plaintiff s statements concerning the 2 intensity, persistence and limiting effects of [his] symptoms are not 3 credible to the extent they are inconsistent with [the ALJ s RFC] 4 assessment. 5 plaintiff s 6 generally do not substantiate the extent of [plaintiff] s allegations. 7 (Id.) 8 impairments could be expected to cause the symptoms regarding which 9 plaintiff testified. (A.R. 13.) testimony is The that ALJ s [t]he first ground objective for rejecting medical findings The ALJ, however, found that plaintiff s medically determinable (Id.) To the extent the ALJ was of the view that 10 the severity of plaintiff s claimed symptoms and/or pain could not be 11 believed, absent clinical or diagnostic proof establishing the severity 12 described in plaintiff s testimony, that view was improper. 13 pain is, by definition, pain that is unsupported by objective medical 14 findings. 15 failure of the medical record to corroborate a claimant s subjective 16 symptom testimony fully is not, by itself, a legally sufficient basis 17 for rejecting such testimony. 18 (9th Cir. 2001); Bunnell, 947 F.2d at 347 (nothing that [i]f an 19 adjudicator could reject a claim of disability simply because a claimant 20 fails to produce evidence supporting the severity of the pain there 21 would be no reason for an adjudicator to consider anything other than 22 medical findings ). Thus, the ALJ s finding that the objective evidence 23 does not support the extent of plaintiff s symptom testimony does not, 24 in 25 discrediting plaintiff s testimony. 26 581, 584 (9th Cir. 1988); see also Burch, 400 F.3d at 681. and of Excess Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). itself, The Rollins v. Massanari, 261 F.3d 853, 856 constitute a clear and convincing reason for See Varney v. Secretary, 846 F.2d 27 28 The ALJ also found plaintiff to be not credible: 7 (1)because of his 1 description of his daily routine; (2) because he did not frequently 2 visit his doctor despite alleged side effects of medication; (3) based 3 on alleged inconsistencies between plaintiff s hearing testimony and his 4 prior written statements about his seizures; (4) because plaintiff 5 lacked medical compliance; and (5) based on [t]he fact [plaintiff] is 6 looking for work[, which] tends to show that he believes he is capable 7 of working. (A.R. 14-15.) 8 9 First, while the ALJ may look at plaintiff s daily activities as a 10 basis for determining whether plaintiff can perform certain work, the 11 ALJ s decision fails to demonstrate how plaintiff s ability to complete 12 paperwork for his divorce, a food stamp application, and his Social 13 Security Administration 14 ability to perform full-time work as a telephone solicitor or in any 15 other occupation. 16 Cir. 1990)(daily activities may not be relied upon to support an adverse 17 credibility decision where those activities do not affect the claimant s 18 ability to perform appropriate work activities on an ongoing and daily 19 basis); Smolen v. Chater, 80 F.3d 1273, 1283 n.7 (9th Cir. 1996)( The 20 Social 21 incapacitated to be eligible for benefits, and many home activities may 22 not be easily transferable to a work environment where it might be 23 impossible to rest periodically or take medication. ). Further, the ALJ 24 fails to show the relevance of plaintiff s daily activities to his 25 credibility determination, because the ALJ did not demonstrate any 26 inconsistency between plaintiff s daily activity level and claimed 27 limitations. 28 1998)( Only if the level of activity were inconsistent with Claimant s Security disability application translates into the See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Act does not require that claimants be utterly See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 8 1 claimed limitations would 2 these activities have any bearing on Claimant s credibility. ). 3 4 Second, plaintiff s lack of frequent doctor visits, despite the 5 side effects of his medicine, does not constitute a clear and convincing 6 reason for rejecting plaintiff s credibility. 7 his medication pretty much controls [his] daytime seizures, but also 8 results 9 constantly moving, like nervousness, and depression. in side effects, including: dry Plaintiff testified that mouth, uncontrollable, (A.R. 31, 34.) 10 When asked by the ALJ whether plaintiff had reported the side effects to 11 doctors, plaintiff responded that he has not been able to do so, because 12 he is currently in the middle of finding another doctor. 13 Plaintiff testified that he is on Medi-Cal and must find a specialist 14 who will take Medi-Cal payments, because he cannot go to a regular 15 doctor.4 16 a counselor for treatment of his depression. 17 the ALJ s second reason for discrediting plaintiff is unpersuasive, 18 because it failed to account properly for his testimony as a whole. 19 Reddick, 157 F.3d at 722-723 (ALJ s credibility finding determined to be 20 erroneous, because ALJ did not fully account for all parts of the (A.R. 25-26.) (A.R. 31-32.) Further, plaintiff testified that he has seen (A.R. 34.) Accordingly, See 21 22 23 24 25 26 27 28 4 The Ninth Circuit has proscribed the rejection of a claimant s complaints for lack of treatment when the record establishes that the claimant could not afford it. Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999); see also Smolen, 80 F.3d at 1284; Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995)( [a]lthough progress has been made in providing affordable medical care to the needy . . . many Americans are without the means or opportunity to obtain necessary medical care. Social Security disability and SSI benefits exist to give financial assistance to disabled persons because they are without the ability to sustain themselves. It flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him. )(citations omitted). 9 1 claimant s testimony). 2 3 Third, the ALJ rejected plaintiff s credibility based upon what the 4 ALJ characterized as inconsistencies in plaintiff s statements. 5 (A.R. 14.) 6 had a seizure since 2006 to 2007, which was not consistent with his 7 earlier seizure questionnaire. 8 plaintiff when his last seizure took place, and plaintiff responded that 9 he thought it was in 2006 or 2007. The ALJ noted that [plaintiff] testified that he had not (Id.) At the hearing, the ALJ asked (A.R. 33.) In plaintiff s earlier 10 seizure questionnaire, question three asked him to state the dates 11 (approximate) of [his] last four seizures. 12 filled in each of the four blanks with a date in 2007, but he expressly 13 noted in the last two blanks that he was unsure of the specific dates. 14 (Id.) Thus, plaintiff s hearing testimony and his earlier questionnaire 15 responses are not inconsistent, and the ALJ s mischaracterization of the 16 record cannot support his adverse credibility finding. See Regennitter, 17 166 18 constitutes error). F.3d at 1297 ( inaccurate (A.R. 152.) characterization of the Plaintiff evidence 19 20 Further, the ALJ s assertion that plaintiff was unable to provide 21 a good seizure description is not a compelling reason to reject 22 plaintiff s testimony as not credible. 23 seizure questionnaire s question -- How long do your seizures usually 24 last? -- plaintiff responded that he was too unconscious to know. 25 (A.R. 152.) 26 having a seizure. 27 seizure has occurred, after-the-fact, because his jaw is sore, he may 28 have bitten his tongue, and he [has] to use the bathroom. (A.R. 14.) In response to a Further, plaintiff testified that he is unaware when he is (A.R. 30.) Plaintiff also testified that he knows a 10 (A.R. 29- 1 30.) The ALJ fails to explain what he means by a good seizure 2 description, and he also fails to explain how plaintiff, who is 3 unconscious during seizures, reasonably could be expected to provide 4 such a description. 5 finding that plaintiff lacks credibility is not clear and convincing. Accordingly, this reason advanced by the ALJ for 6 7 Fourth, the ALJ s reliance on plaintiff s purported noncompliance 8 with his medication to support an adverse credibility finding is legally 9 insufficient under the circumstances of this case. The ALJ cites only 10 the medical record noting that, in a 2009 emergency room visit, a note 11 was made that plaintiff ran out of his medications one week earlier. 12 (A.R. 15.) 13 ALJ s 14 compliant. 15 inability to buy prescribed medications are documented. In his February 16 2008 seizure questionnaire, plaintiff was asked how often he sees his 17 doctor, and plaintiff responded, cannot afford prescription refill or 18 doctor s visits. 19 just kicked in the Medi-Cal, the approval . . . . 20 Accordingly, when plaintiff went to the emergency room in 2009, he was 21 not covered by Medi-Cal. 22 assessment even notes that plaintiff is awaiting hardship medication. 23 (A.R. 240.) 24 doubt on a claimant s credibility, such an inference is unreasonable 25 where plaintiff is indigent. 26 Cir. 1989); see also supra note 4. This sole incident is plainly insufficient to support the conclusion (Id.) that plaintiff has not been fully medically Plaintiff s financial constraints and consequent (A.R. 153.) Further, plaintiff testified that they (A.R. 43.) The Riverside Community Hospital triage While an unexplained failure to seek treatment may cast See Fair v. Bowen, 885 F.2d 597, 602 (9th 27 28 Fifth, the ALJ discredits plaintiff s testimony, because plaintiff 11 1 has applied for jobs, and according to the ALJ, such efforts show that 2 plaintiff believes he is capable of working. 3 for discrediting plaintiff is unconvincing. While it is true that 4 plaintiff 5 telemarketer, 6 sustained work. 7 testimony is as unpersuasive as his prior reasons, and thus, it does not 8 support the adverse credibility determination. expressed a desire plaintiff did to not work and indicate (A.R. 15.) applied that he This reason for jobs as was capable a of The ALJ s final reason for discrediting plaintiff s 9 10 For the aforementioned reasons, the ALJ failed to give clear and 11 convincing reasons for discrediting plaintiff s testimony. 12 This error requires reversal. 13 14 II. 15 Any Theoretical Problems With The ALJ s Step Five Finding Are Immaterial So Long As His Step Four Finding Stands. 16 17 Plaintiff does not contend that the ALJ s step four finding 18 regarding plaintiff s RFC -- i.e., that plaintiff can return to his past 19 relevant work as telephone solicitor -- would be improper, assuming that 20 the ALJ did not commit any other errors. 21 step four of the Social Security Administration s sequential evaluation 22 process, 23 capacity and your past relevant work. 24 relevant work, we will find that you are not disabled. 25 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 26 addresses an alternative finding. 27 step five is harmless and immaterial if the ALJ s step four finding 28 stands, because the step four finding is adequate, on its own, to we consider our assessment (See Joint Stip. at 8-9.) of your residual At functional If you can still do your past 20 C.F.R. §§ The ALJ s step five finding Any error committed by the ALJ at 12 1 preclude an award of benefits. 2 3 However, for the reasons discussed above, remand is necessary due 4 to error committed by the ALJ in connection with his assessment of 5 plaintiff s 6 modification of the ALJ s RFC assessment and thus, require a revision of 7 the ALJ s step four finding. 8 remand, for the ALJ to consider the inconsistency issue raised by 9 plaintiff regarding the step five finding. Specifically, on remand, the 10 ALJ should consider if the vocational expert s testimony regarding the 11 three occupations was consistent with the DOT. 12 consider whether additional testimony from the vocational expert must be 13 adduced. credibility. Further proceedings could result in a Accordingly, it would be appropriate, on If not, the ALJ should 14 15 III. Remand Is Required. 16 17 The decision whether to remand for further proceedings or order an 18 immediate award of benefits is within the district court s discretion. 19 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 20 useful purpose would be served by further administrative proceedings, or 21 where the record has been fully developed, it is appropriate to exercise 22 this discretion to direct an immediate award of benefits. 23 ( [T]he decision of whether to remand for further proceedings turns upon 24 the likely utility of such proceedings. ). 25 outstanding issues that must be resolved before a determination of 26 disability can be made, and it is not clear from the record that the ALJ 27 would be required to find the claimant disabled if all the evidence were 28 properly evaluated, remand is appropriate. 13 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 Dodrill v. 3 Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the 4 ALJ could articulate specific and appropriate findings, if any existed, 5 for rejecting the claimant s subjective pain testimony). 6 above, should further proceedings cause the ALJ to revisit his step four 7 finding that plaintiff can perform his past relevant work, the ALJ then 8 must determine whether the existing vocational expert s testimony is 9 adequate to allow for the step five determination to be made, and 10 whether any deficiencies in the vocational expert s testimony must be 11 corrected. As discussed 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 LET JUDGMENT BE ENTERED ACCORDINGLY. 24 25 DATED: July 23, 2012 26 27 28 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 14
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