Yvette L. Landry v. Michael J. Astrue, No. 5:2011cv01260 - Document 21 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. Accordingly, the case is remanded for further proceedings consistent with this opinion and order. (twdb)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 YVETTE L. LANDRY, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-01260-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Yvette Landry seeks judicial review of the 18 Commissioner s final decision denying her application for Social 19 Security Disability Insurance benefits ( DIB ). For the reasons 20 discussed below, the decision of the Commissioner is REVERSED and 21 the matter REMANDED for further proceedings consistent with this 22 opinion. 23 24 I. Facts and Procedural Background 25 Plaintiff was born on November 26, 1973. (Administrative 26 Record ( AR ) at 139.) She has a high school education and has work 27 experience as a sales representative and driver. (AR at 158, 162, 28 204.) Plaintiff filed her application for DIB on January 7, 2009, 1 1 alleging 2 fibromyalgia, back and neck pain, depression, anxiety, and migraine 3 headaches. (AR at 201.) Her application was denied initially on 4 March 4, 2009, and upon reconsideration on April 22, 2009. (AR at 5 71-74, 75-80.) Administrative Law Judge ( ALJ ) Mason Harrell, Jr. 6 held a de novo administrative hearing on May 20, 2010. Plaintiff, 7 represented by an attorney, testified as did a vocational expert 8 ( VE ) and a medical expert. (AR at 31-66.) disability beginning October 22, 2008, due to 9 ALJ Harrell issued an unfavorable decision on July 1, 2010. 10 (AR at 18-24.) The ALJ found that Plaintiff suffered from the 11 severe 12 headaches. (AR at 20.) However, the impairment did not meet the 13 requirements of a listed impairment found in 20 C.F.R. Part 404, 14 Subpart P, Appendix 1. (Id.) impairment of chronic pain due to fibromyalgia and 15 The ALJ further found that Plaintiff retained the residual 16 functional capacity ( RFC ) to perform sedentary work as defined in 17 20 C.F.R. 404.1567(a): She can stand/walk/sit for 6 hours of an 8- 18 hour workday with normal breaks such as every two hours. She can 19 lift and carry 10 pounds maximum, and occasionally stoop and bend. 20 She can climb stairs, but she cannot climb ladders, work at 21 heights, or balance. She should be able to lie down during the 22 lunch break and could miss work 1-2 times a month. In addition, the 23 work should consist of simple, repetitive tasks. (AR at 20.) 24 The ALJ concluded that although Plaintiff could not perform 25 any past relevant work, there were jobs in the national economy 26 which Plaintiff could perform, such as food and beverage order 27 clerk and charge account clerk. (AR at 23.) Therefore, he found 28 that Plaintiff was not disabled under the Social Security Act. (AR 2 1 at 24.) 2 The Appeals Council denied review on June 7, 2011 (AR at 1-3), 3 and Plaintiff commenced this action for judicial review. On May 7, 4 2012, the parties filed a Joint Stipulation ( Joint Stip. ) of 5 disputed facts and issues. Plaintiff contends that the ALJ erred in 6 evaluating Plaintiff s credibility and subjective pain testimony. 7 (Joint Stip. at 4.) Plaintiff asks the Court to reverse and order 8 an award of benefits, or in the alternative, remand for further 9 administrative proceedings. (Joint Stip. at 17.) The Commissioner 10 requests 11 alternative, remanded for further proceedings. (Joint Stip. at 17- 12 18.) that the ALJ s decision be affirmed, or in the 13 14 II. 15 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner s 17 decision must be upheld unless the ALJ s findings are based on 18 legal error or are not supported by substantial evidence in the 19 record as a whole. Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 20 1999); 21 Substantial evidence means more than a scintilla, but less than a 22 preponderance; it is evidence that a reasonable person might accept 23 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 24 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 25 466 26 substantial evidence supports a finding, the reviewing court must 27 review the administrative record as a whole, weighing both the 28 evidence that supports and the evidence that detracts from the Parra F.3d decision v. 880, to Astrue, 882 (9th deny 481 benefits. F.3d Cir. 742, 2006)). 3 746 To The Commissioner s (9th Cir. determine 2007). whether 1 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 2 (9th Cir. 1996). If the 3 or reversing the ALJ s conclusion, the reviewing court may not 4 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 5 882. evidence can support either affirming 6 7 III. Discussion 8 Plaintiff contends that the ALJ failed to provide clear and 9 convincing reasons for rejecting her subjective pain testimony. 10 (Joint Stip. at 4.) To determine whether a claimant s testimony 11 about subjective pain or symptoms is credible, an ALJ must engage 12 in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th 13 Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 14 (9th Cir. 2007)). First, the ALJ must determine whether the 15 claimant has presented objective medical evidence of an underlying 16 impairment which could reasonably be expected to produce the 17 alleged pain or other symptoms. Lingenfelter, 504 F.3d at 1036. 18 [O]nce the claimant produces objective medical evidence of an 19 underlying impairment, an adjudicator may not reject a claimant s 20 subjective complaints based solely on a lack of objective medical 21 evidence to fully corroborate the alleged severity of pain. 22 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 23 To the extent that an individual s claims of functional limitations 24 and restrictions due to alleged pain is reasonably consistent with 25 the objective medical evidence and other evidence in the case, the 26 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 27 28 4 1 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).1 2 Unless there is affirmative evidence showing that the claimant 3 is malingering, the ALJ must provide specific, clear and convincing 4 reasons for discrediting a claimant s complaints. Robbins, 466 F.3d 5 at 883. General findings are insufficient; rather, the ALJ must 6 identify 7 undermines the claimant s complaints. Reddick, 157 F.3d at 722 8 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The 9 ALJ must consider a claimant s work record, observations of medical what and testimony third is not parties credible with and knowledge what of evidence 10 providers claimant s 11 limitations, aggravating factors, 12 by symptoms, effects of medication, and the claimant s daily 13 activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 14 1996). The ALJ may also consider an unexplained failure to seek 15 treatment or follow a prescribed course of treatment and employ 16 other ordinary techniques of credibility evaluation. Id. (citations 17 omitted). functional restrictions caused 18 Plaintiff testified at the administrative hearing to the 19 following symptoms and functional limitations: she feels tired and 20 exhausted most of the time; she has persistent neck, shoulder, hip, 21 and joint pain; she has hand tremors; she is prevented from working 22 at her former job as a driver because the fibromyalgia makes her 23 tired and her pain medication makes her feel drowsy; and pain in 24 25 26 27 28 1 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 5 1 her legs and knees makes it difficult for her to stand and/or walk 2 for more than 20 minutes at a time. (AR at 39-41, 43, 46-47.) 3 The ALJ found that Plaintiff s medical impairments could 4 reasonably be expected to cause the alleged symptoms. (AR at 22.) 5 The ALJ was therefore required to provide specific, clear and 6 convincing reasons for rejecting Plaintiff s subjective allegations 7 of pain and functional limitations. The ALJ found Plaintiff only 8 partially credible because [t]he alleged degree of functional 9 impairment is not fully supported by objective findings, treatment 10 11 records, or the claims representative s observations. (Id.) Here, the ALJ had already concluded that Plaintiff s 12 fibromyalgia was a severe impairment that could be expected to 13 produce the symptoms she described. In light of those conclusions, 14 the ALJ was not entitled to discredit Plaintiff s testimony merely 15 because the objective evidence did not corroborate the severity of 16 the pain. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 345; Light 17 v. Soc. Sec. Admin, 119 F.3d 789 (9th Cir. 1997) ( [B]ecause a 18 claimant need not present clinical or diagnostic evidence to 19 support the severity of his pain ... a finding that the claimant 20 lacks credibility cannot be premised wholly on a lack of medical 21 support for the severity of his pain. ) 22 Nor is the ALJ s reliance on the claims representative s 23 failure to observe any apparent problems during the application 24 interview a specific, clear or convincing reason for rejecting 25 Plaintiff s complaints. The fact that a claimant does not exhibit 26 physical manifestations of prolonged pain at the hearing provides 27 little, if any, support for the ALJ s ultimate conclusion that the 28 claimant is not disabled or that his allegations of constant pain 6 1 are not credible. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 2 Cir. 1984). 3 claims 4 interview. This same reasoning applies to the observations of a representative during the course of an application 5 The final reason given by the ALJ for rejecting Plaintiff s 6 credibility, that her alleged degree of impairment is not supported 7 by the treatment records, is also insufficient because the ALJ did 8 not 9 undermines Plaintiff s subjective complaints. (AR at 22.) As noted 10 by the Ninth Circuit, fibromyalgia is diagnosed entirely on the 11 basis of patients reports of pains and other symptoms, and, 12 although there is a set of agreed-upon diagnostic criteria ..., 13 there are no laboratory tests to confirm the diagnosis. Benecke v. 14 Barnhart, 379 F.3d 587, 590 (9th Cir. 2004).2 The medical records 15 consistently 16 fibromyalgia. This diagnosis was made by a treating rheumatologist, 17 Dr. 18 However, it is unclear whether Plaintiff has been found to have the 19 specified number of tender points or has met any other diagnostic 20 criteria for fibromyalgia. There is no consultative physician s 21 report, or other data, to support or reject the diagnosis of 22 fibromyalgia. Accordingly, if the ALJ believes that Plaintiff s 23 subjective 24 medical evidence, he must specify on remand what that medical 25 evidence is and how it undermines Plaintiff s credibility. specify what Bikramjit medical indicate S. evidence that Ahluwalia. complaints are in Plaintiff (AR at unsupported the has 52-53, or treatment a records history 265-66, of 413-426). contradicted by the 26 2 27 28 In 1990, the American College of Rheumatology issued a set of agreed-upon guidelines for diagnosing fibromyalgia, which primarily include widespread pain in all four quadrants of the body and at least 11 of 18 specified tender points on the body. 7 1 2 IV. Conclusion 3 The decision whether to remand for further proceedings is 4 within this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 5 1175-78 (9th Cir. 2000). Where no useful purpose would be served by 6 further administrative proceedings, or where the record has been 7 fully developed, it is appropriate to exercise this discretion to 8 direct an immediate award of benefits. Id. at 1179 ( [T]he decision 9 of whether to remand for further proceedings turns upon the likely 10 utility of such proceedings. ); Benecke v. Barnhart, 379 F.3d 587, 11 593 (9th Cir. 2004). However, where there are outstanding issues 12 that must be resolved before a determination of disability can be 13 made, and it is not clear from the record that the ALJ would be 14 required to find the claimant disabled if all the evidence were 15 properly evaluated, remand is appropriate. Bunnell v. Barnhart, 336 16 F.3d 1112, 1115-16 (9th Cir. 2003); see also Connett, 340 F.3d at 17 876. 18 Here, the ALJ failed to explain with sufficient specificity 19 the basis for his determination that Plaintiff was not fully 20 credible regarding the intensity, persistence, and limiting effects 21 of her symptoms. Accordingly, the case is remanded for further 22 proceedings consistent with this opinion and order. 23 Dated: May 18, 2012 24 25 ______________________________ Marc L. Goldman United States Magistrate Judge 26 27 28 8
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