David Charles Pangus v. Michael J Astrue, No. 5:2012cv00103 - Document 19 (C.D. Cal. 2013)
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 17 DAVID CHARLES PANGUS, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ) ___________________________________) NO. EDCV 12-00103-MAN MEMORANDUM OPINION AND ORDER 18 19 Plaintiff filed a Complaint on January 25, 2012, seeking review of 20 the denial of plaintiff s application for a period of disability, 21 disability insurance benefits ( DIB ), and supplemental security income 22 ( SSI ). On March 1, 2012, the parties consented, pursuant to 28 U.S.C. 23 § 636(c), to proceed before the undersigned United States Magistrate 24 Judge. The parties filed a Joint Stipulation on October 11, 2012, in 25 which: plaintiff seeks an order reversing the Commissioner s decision 26 and remanding this case for the payment of benefits or, alternatively, 27 1 28 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 for further administrative proceedings; and the Commissioner requests 2 that his decision be affirmed or, alternatively, remanded for further 3 administrative proceedings. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On August 17, 2010, plaintiff filed an application for a period of 8 disability and DIB. (Administrative Record ( A.R. ) 25.) On August 18, 9 2010, plaintiff filed an application for SSI. (Id.) Plaintiff, who was 10 born on April 18, 1963 (A.R. 32),2 claims to have been disabled since 11 July 12 cirrhosis/liver failure, confusion, depression, anxiety, and Hepatitis 13 C (A.R. 29-30, 73, 80). 19, 2010 (A.R. 25), due to heart disease, heart attack, 14 15 After the Commissioner denied plaintiff s claim initially and upon 16 reconsideration (A.R. 25, 73-77, 80-84), plaintiff requested a hearing 17 (A.R. 25, 86-87). 18 an attorney, appeared and testified at a hearing before Administrative 19 Law Judge Sharilyn Hopson (the ALJ ). 20 expert Samuel Landau, M.D., and vocational expert Troy Scott also 21 testified. 22 (A.R. 25-33), and the Appeals Council subsequently denied plaintiff s 23 request for review of the ALJ s decision (A.R. 4-6). 24 now at issue in this action. (Id.) On July 20, 2011, plaintiff, who was represented by (A.R. 25, 38-68.) Medical On July 28, 2011, the ALJ denied plaintiff s claim That decision is 25 26 27 28 2 On the alleged disability onset date, plaintiff was 47 years old, which is defined as a younger individual. (A.R. 32; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff meets the insured status requirements 4 of the Social Security Act through December 31, 2014, and has not 5 engaged in substantial gainful activity since July 19, 2010, the alleged 6 onset date of his disability. 7 plaintiff has the severe impairments of: 8 disorder[;] chronic active hepatitis cause[d] by alcohol (in sustained 9 remission)/HCV [(Hepatitis C virus)] with liver cirrhosis[;] Childs-Pugh 10 A[;] ischemic heart disease with successful [stent placement] in 2005 11 and chronic stable angina pectoris, NYHA [(New York Heart Association)] 12 2C. 13 impairment or combination of impairments that meets or medically equals 14 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 15 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 16 and 416.926). (Id.) (A.R. 27.) The ALJ determined that a learning disorder[;] mood The ALJ concluded, however, that plaintiff does not have an (Id.) 17 18 After reviewing the record, the ALJ determined that plaintiff has 19 the residual functional capacity ( RFC ) to perform less than a full 20 range 21 416.967(b) with the following limitations: of light work as defined in 20 C.F.R. §§ 404.1567(b) 22 23 [Plaintiff] can stand and/or walk for six hours in an 8-hour 24 workday; he can sit for six hours in an 8-hour workday with 25 normal breaks such as every 2 hours; he can lift and/or carry 26 10 pounds frequently and 20 pounds occasionally; he can climb 27 stairs, but he cannot climb ladders, work at heights, or 28 balance; and his work environment should be air-conditioned 3 and 1 for temperature control. [Plaintiff] is limited to simple 2 routine tasks. 3 4 (A.R. 28-29.) 5 6 The ALJ found that plaintiff is unable to perform any past relevant 7 work. (A.R. 31.) 8 and after having considered plaintiff s age, education,3 work experience, 9 and the testimony of the vocational expert, the ALJ found there are 10 jobs that exist in significant numbers in the national economy that 11 [plaintiff] 12 packing 13 Accordingly, the ALJ concluded that plaintiff has not been under a 14 disability, as defined in the Social Security Act, from July 19, 2010, 15 through July 28, 2011, the date of the ALJ s decision. can machine However, based upon his RFC assessment for plaintiff perform, including operator, and that house of electronics cleaner. worker, (A.R. 32.) (A.R. 33.) 16 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 20 decision to determine whether it is free from legal error and supported 21 by substantial evidence in the record as a whole. 22 F.3d 625, 630 (9th Cir. 2007). 23 evidence as a reasonable mind might accept as adequate to support a 24 conclusion. 25 a mere scintilla but not necessarily a preponderance. 26 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the 27 3 28 The ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 32.) 4 1 record can constitute substantial evidence, only those reasonably drawn 2 from the record will suffice. 3 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 4 5 Although this Court cannot substitute its discretion for that of 6 the Commissioner, the Court nonetheless must review the record as a 7 whole, weighing both the evidence that supports and the evidence that 8 detracts from the [Commissioner s] conclusion. 9 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Desrosiers v. Sec y of 10 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The ALJ is 11 responsible for determining credibility, resolving conflicts in medical 12 testimony, and for resolving ambiguities. 13 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 14 15 The Court will uphold the Commissioner s decision when the evidence 16 is susceptible to more than one rational interpretation. 17 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 18 review only the reasons stated by the ALJ in his decision and may not 19 affirm the ALJ on a ground upon which he did not rely. 20 at 630; see also Connett, 340 F.3d at 874. 21 the Commissioner s decision if it is based on harmless error, which 22 exists only when it is clear from the record that an ALJ s error was 23 inconsequential to the ultimate nondisability determination. Robbins 24 v. Soc. Sec. Admin, 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 25 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 26 at 679. 27 /// 28 /// 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 DISCUSSION 2 3 Plaintiff claims the ALJ did not give clear and convincing reasons 4 for rejecting his subjective complaints. 5 Stip. ) at 4-9.) 6 to consider properly his complaints of fatigue -- complaints which the 7 medical 8 plaintiff s RFC (A.R. 31), opined were consistent with plaintiff s 9 cirrhosis of the liver (A.R. 54). expert, (Joint Stipulation ( Joint In particular, plaintiff contends that the ALJ failed whose opinion the ALJ relied upon in assessing 10 11 I. 12 The ALJ Failed To Give Clear And Convincing Reasons For Discrediting Plaintiff s Subjective Complaints. 13 14 Once a disability claimant produces objective medical evidence of 15 an underlying impairment that is reasonably likely to be the source of 16 claimant s subjective symptom(s), all subjective testimony as to the 17 severity of the symptoms must be considered. 18 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 19 (9th 20 (explaining how pain and other symptoms are evaluated). 21 ALJ makes 22 thereof, he or she may only find an applicant not credible by making 23 specific findings as to credibility and stating clear and convincing 24 reasons for each. 25 considered in weighing a claimant s credibility include: 26 claimant s reputation for truthfulness; (2) inconsistencies either in 27 the claimant s testimony or between the claimant s testimony and her 28 conduct; (3) the claimant s daily activities; (4) the claimant s work Cir. 1991); a see also finding of 20 C.F.R. §§ malingering based Moisa v. Barnhart, 367 404.1529(a), on Robbins, 466 F.3d at 883. 6 416.929(a) [U]nless an affirmative evidence The factors to be (1) the 1 record; and (5) testimony from physicians and third parties concerning 2 the nature, severity, and effect of the symptoms of which the claimant 3 complains. 4 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 5 6 At the July 20, 2011 Administrative Hearing, when asked to discuss 7 his symptoms, plaintiff testified that he experiences: 8 fatigue; confusion; abdominal pain; difficulties sleeping; and recurrent 9 dizzy spells. (A.R. 29, 61-63.) weakness and He testified that if he sits down to 10 do paperwork, he gets a headache. (A.R. 59.) With respect to his daily 11 activities, plaintiff testified that he can: take care of his personal 12 hygiene; perform light household chores, including sweeping, mopping, 13 and washing dishes (A.R. 45); and drive short distances without feeling 14 fatigued (A.R. 46). 15 whether he experienced any side effects from his medications. 16 63.) Plaintiff also testified that he did not know (A.R. 17 18 The ALJ found, as noted supra, that plaintiff has the severe 19 impairments of: a learning disorder[;] mood disorder[;] chronic active 20 hepatitis cause[d] by alcohol (in sustained remission)/HCV [(Hepatitis 21 C virus)] with liver cirrhosis[;] Childs-Pugh A[;] ischemic heart 22 disease with successful [stent placement] in 2005 and chronic stable 23 angina pectoris, NYHA [(New York Heart Association)] 2C. 24 The 25 impairments could reasonably be expected to cause the alleged symptoms. 26 (A.R. 29.) Further, the ALJ cited no evidence of malingering by 27 plaintiff. Accordingly, the ALJ s reason for discrediting plaintiff s 28 subjective complaints must be clear and convincing. ALJ also found that [plaintiff] s 7 medically (A.R. 27.) determinable 1 The ALJ found 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 not credible, because: 6 level of limitations alleged by plaintiff; (2) plaintiff is a poor 7 historian; and (3) plaintiff made an inconsistent statement regarding 8 his daily activities.4 (A.R. 29.) Specifically , the ALJ found plaintiff to be (1) the medical evidence does not support the (A.R. 29-30.) 9 10 The ALJ s first reason for discrediting plaintiff -- i.e., that the 11 medical record does not corroborate plaintiff s subjective symptom 12 testimony fully -- is, by itself and without being buttressed by other 13 appropriate 14 plaintiff s credibility. 15 Cir. 2001); Bunnell, 947 F.2d at 347 (noting that [i]f an adjudicator 16 could reject a claim of disability simple because [plaintiff] fails to 17 produce evidence supporting the severity of the pain, there would be no 18 reason for an adjudicator to consider anything other than medical 19 findings ). 20 plaintiff s alleged limitations is not supported by the medical evidence reasons, an insufficient basis upon which to reject Rollins v. Massanari, 261 F.3d 853, 856 (9th Accordingly, the ALJ s finding that the level of 21 22 23 24 25 26 27 28 4 The Commissioner also contends that the ALJ found plaintiff to be not credible, because his treatment was conservative. (Joint Stip. at 11.) Contrary to the Commissioner s contention, the ALJ never specifically discredited plaintiff because his treatment was conservative. Rather, in summarizing plaintiff s treatment, the ALJ stated that the medical records show[ed] some treatment and one problematic episode that resolved in a relatively short period of time. (A.R. 30.) Critically, however, the ALJ never explained how or why plaintiff s treatment detracted from his credibility. Moreover, the ALJ does not suggest, and the medical record does not appear to contain, any specific treatment to ameliorate plaintiff s chief complaint of fatigue from his cirrhosis of the liver. Accordingly, to the extent the ALJ discredited plaintiff because his treatment was conservative, the ALJ s reasoning is unpersuasive. 8 1 cannot, alone, constitute a clear and convincing reason for rejecting 2 plaintiff s testimony. 3 Cir. 1988); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). See Varney v. Secretary, 846 F.2d 581, 584 (9th 4 5 The ALJ s second reason for discrediting plaintiff -- i.e., that he 6 is a poor historian -- is unpersuasive. 7 performing a complete internal examination of plaintiff, Dr. Sandra 8 Eriks, M.D., considered [plaintiff] a poor historian. 9 The ALJ concluded that Dr. Eriks opinion of [plaintiff] s ability as 10 a historian . . . detract[s] from the credibility of [plaintiff] s 11 allegations concerning his symptoms and impairments. 12 reviewing Dr. Eriks evaluation of plaintiff, however, it appears that 13 Dr. Eriks found plaintiff to be a poor historian, because he could not 14 remember, inter alia, exactly what procedures he had undergone and how 15 his diagnosis was made. 5 16 plaintiff s credibility, as the ALJ concluded, plaintiff s inability to 17 recall the details surrounding the procedures he has undergone and his 18 diagnoses appears to be consistent with his learning disability and his 19 testimony that he experiences confusion. Accordingly, in this case, the 20 fact that Dr. Eriks found plaintiff to be a poor historian does not 21 constitute a clear and convincing reason for discrediting plaintiff. (A.R. 217.) The ALJ notes that, after (A.R. 30.) (Id.) After Rather than detracting from 22 23 24 The ALJ s last reason for finding plaintiff to be not credible is also neither clear nor convincing. In her decision, the ALJ found that 25 26 27 28 5 Notably, in finding plaintiff to be a poor historian, Dr. Eriks did not suggest that plaintiff was not forthcoming and/or candid with his responses. 9 1 plaintiff s statement, in his December 30, 20106 Disability Appeal 2 Report, that he can t have any physical activities due to his heart 3 disease . . . worsen[ing] and need [for] a liver transplant is 4 inconsistent with his July 20, 2011 testimony that he does household 5 chores and walks around his neighborhood. (A.R. 29.) While the ALJ may 6 consider rendering her 7 assessment, 8 inconsistent. 9 completing his Disability Appeal Report, plaintiff had been hospitalized 10 for chest pains and underwent, inter alia, a left heart catheterization 11 and left ventriculography. 12 plaintiff felt that he could not perform any physical activities at that 13 time is not inconsistent with his testimony, given months later, that he 14 could perform light household chores and walk around his neighborhood. 15 Moreover, in stating that he can t perform any physical activities, it 16 does not appear that plaintiff was stating that he could not perform any 17 activity 18 activities 19 activity. 20 minimal daily activities do not translate into the ability to perform 21 full-time work.7 inconsistent the two statements statements by in plaintiff are not credibility necessarily As an initial matter, it appears that days prior to whatsoever, would (A.R. 261.) and it amount to is unclear what As such, the fact that whether plaintiff plaintiff s considered basic physical Certainly, on the record before the Court, plaintiff s See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 22 23 6 24 25 26 27 28 Although not dated, it appears that plaintiff s Disability Appeal Report was completed on December 30, 2010. (A.R. 176, noting in a subsequent report that plaintiff s last Disability Report was completed on December 30, 2010.) 7 Perhaps, on remand, if the ALJ inquired further into plaintiff s activities, she would find them to be consistent with fulltime employment. However, as noted supra, based on the record before the Court, plaintiff s minimal activities do not appear to be consistent with full-time employment. 10 1 2001)(noting that the mere fact that a plaintiff has carried on certain 2 daily activities, such as grocery shopping, driving a car, or limited 3 walking for exercise, does not in any way detract from her credibility 4 as to her overall disability ); Smolen v. Chater, 80 F.3d 1272, 1283 n.7 5 (9th Cir. 1996)( The Social Security Act does not require that claimants 6 be utterly incapacitated to be eligible for benefits, and many home 7 activities may not be easily transferable to a work environment where it 8 might 9 Therefore, 10 be impossible the ALJ s to rest periodically reasoning does not or take medication. ). constitute a clear and convincing reason for discrediting plaintiff. 11 12 Accordingly, for the aforementioned reasons, the ALJ failed to give 13 clear and convincing reasons, as required, for finding plaintiff to be 14 not credible.8 This constitutes error. 15 16 II. Remand Is Required. 17 18 The decision whether to remand for further proceedings or order an 19 immediate award of benefits is within the district court s discretion. 20 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 21 useful purpose would be served by further administrative proceedings, or 22 where the record has been fully developed, it is appropriate to exercise 23 this discretion to direct an immediate award of benefits. 24 ( [T]he decision of whether to remand for further proceedings turns upon Where no Id. at 1179 25 26 27 28 8 While the Commissioner now offers other reasons to explain the ALJ s credibility determination, the Court cannot entertain these post hoc rationalizations. See, e.g., Connett, 340 F.3d at 874 (finding that [i]t was error for the district court to affirm the ALJ s credibility decision based on evidence that the ALJ did not discuss ). 11 1 the likely utility of such proceedings. ). However, where there are 2 outstanding issues that must be resolved before a determination of 3 disability can be made, and it is not clear from the record that the ALJ 4 would be required to find the claimant disabled if all the evidence were 5 properly evaluated, remand is appropriate. Id. at 1179-81. 6 7 Remand is the appropriate remedy to allow the ALJ the opportunity 8 to remedy the above-mentioned deficiencies and errors.9 9 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so 10 that the ALJ could articulate specific and appropriate findings, if any 11 existed, for rejecting the claimant s subjective pain testimony). 12 remand, the ALJ must revisit plaintiff s testimony and must either 13 credit plaintiff s testimony or give clear and convincing reasons why 14 plaintiff s testimony, particularly his testimony regarding his fatigue, 15 is not credible. After so doing, the ALJ may need See, e.g., to On reassess 16 17 18 19 20 21 22 23 24 25 26 27 28 9 In the Ninth Circuit, courts have the discretion to credit as true the testimony of claimants when the ALJ has failed to provide legally sufficient reasons for rejecting the same. See, e.g., Connett, 340 F.3d at 876 (holding that [i]nstead of being a mandatory rule, we have some flexibility in applying the credit as true theory ). In cases where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant s excess pain testimony were credited, applying the credit as true rule is appropriate. Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). Here, if plaintiff s testimony were credited as true, it is unclear whether plaintiff would be considered disabled under the Social Security Act. At the hearing, the vocational expert testified that a hypothetical person with plaintiff s RFC who was off-task 20 percent of the time due to fatigue would not be able to perform any work. (A.R. 66.) Critically, however, while plaintiff testified that he felt fatigued, he did not specifically testify for what duration he would be off task as a result of his fatigue. Accordingly, because it is unclear whether plaintiff s testimony, if credited as true, would require a finding of disability, the Court declines to credit his testimony as true. 12 1 plaintiff s RFC, in which case additional testimony from a vocational 2 expert likely will be needed to determine what work, if any, plaintiff 3 can perform. 4 5 CONCLUSION 6 7 Accordingly, for the reasons stated above, IT IS ORDERED that the 8 decision of the Commissioner is REVERSED, and this case is REMANDED for 9 further proceedings consistent with this Memorandum Opinion and Order. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 12 copies of this Memorandum Opinion and Order and the Judgment on counsel 13 for plaintiff and for defendant. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: May 23, 2013 18 19 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 13
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