Carol Lee Johnson v. Michael J. Astrue, No. 5:2012cv00435 - Document 27 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Carol Lee Johnson v. Michael J. Astrue Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CAROL LEE JOHNSON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 12-00435-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on April 4, 2012, seeking review of the 19 denial of plaintiff s application for a period of disability, disability 20 insurance benefits ( DIB ), and supplemental security income benefits 21 ( SSI ). 22 § 636(c), to proceed before the undersigned United States Magistrate 23 Judge. The parties filed a Joint Stipulation on February 8, 2013, in 24 which: plaintiff seeks an order reversing the Commissioner s decision On May 15, 2012, the parties consented, pursuant to 28 U.S.C. 25 26 27 28 1 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).) Dockets.Justia.com 1 and remanding this case for the payment of benefits or, alternatively, 2 for further administrative proceedings; and the Commissioner requests 3 that his decision be affirmed or, alternatively, remanded for further 4 administrative proceedings. 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 7 8 9 On August 25, 2009, plaintiff filed an application for a period of disability and DIB; and on August 31, 2009, plaintiff (Administrative Record ( A.R. ) 33.) filed an 10 application for SSI. 11 claims to have been disabled since July 10, 2008 (id.), due to: 12 and neck pain[;] pain in the shoulders, elbows, wrists, hands, and 13 hips[;] 14 Plaintiff has past relevant work experience as an assistant manager 15 (mobile home park), waitress, and cashier/checker. headaches[;] diarrhea[;] and mental problems Plaintiff back (A.R. 37). (A.R. 39-40.) 16 17 After the Commissioner denied plaintiff s claims initially and upon 18 reconsideration (A.R. 33, 117-20, 128-33), plaintiff requested a hearing 19 (A.R. 135). 20 counsel, appeared and testified at a hearing before Administrative Law 21 Judge Milan M. Dostal (the ALJ ). 22 expert Susan Allison also testified. 23 denied 24 subsequently denied plaintiff s request for review of the ALJ s decision 25 (A.R. 5-7). 26 /// 27 /// 28 /// On February 9, 2011, plaintiff, who was represented by plaintiff s claims (A.R. (A.R. 33, 75-112.) (Id.) 33-40), On March 4, 2011, the ALJ and the Appeals That decision is now at issue in this action. 2 Vocational Council 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff met the insured status requirements of 4 the Social Security Act through March 31, 2012, and has not engaged in 5 substantial gainful activity since July 10, 2008, the alleged onset date 6 of her disability. 7 the severe impairments of: 8 disease of the cervical and lumbar spine; osteoporosis; mild bilateral 9 epicondylitis; diarrhea; hemorrhoids; and sleep disorder. (A.R. 35.) The ALJ determined that plaintiff has moderate degenerative joint and disc (Id.) The 10 ALJ also determined that [plaintiff] s medically determinable mental 11 impairments of depression, anxiety, panic attacks and stress, considered 12 singly and in combination, do not cause more than minimal limitation in 13 [plaintiff] s ability to perform basic mental work activities and are 14 therefore nonsevere. (Id.) After considering plaintiff s impairments, 15 the 16 combination of impairments that meets or medically equals one of the 17 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 18 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 19 416.926). ALJ concluded that plaintiff does not have an impairment or (A.R. 36.) 20 21 After reviewing the record, the ALJ determined that plaintiff has 22 the residual functional capacity ( RFC ) to perform light work as 23 defined 24 Specifically, the ALJ found that: in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (A.R. 25 26 [plaintiff] can lift/carry 20 pounds occasionally and 10 27 pounds frequently; stand, sit and walk up to six hours each in 28 an eight-hour workday; occasionally climb, balance, stoop, 3 36.) 1 kneel, crouch and crawl; avoid climbing ladders, ropes and 2 scaffolds; avoid working above shoulder height bilaterally; 3 and avoid working at unprotected heights and [with] hazardous 4 moving machinery. 5 joints, head, neck, back, shoulders, elbows, wrists, hands, 6 hips and abdomen and she has hypertension, osteoporosis, 7 diarrhea, 8 conditions of moderate nature [that] would have a moderate 9 affect sleep on her these [Plaintiff] has pain generally in the disorder ability and to conditions hemorrhoids, perform back are can work and activities; however, 11 appropriate 12 effects. 13 depression, anxiety, panic attacks and stress, which would be 14 of a slight nature and would have a slight affect on her 15 ability to perform basic work activities or those conditions 16 are or can be controlled by appropriate medications without 17 significant adverse side effects. without be pain 10 medications or with significant controlled adverse by side She also has some psychiatric illnesses such as 18 19 (A.R. 36-37.) 20 21 The ALJ found that plaintiff s past relevant work do[es] not 22 require the performance of work-related 23 [plaintiff s RFC]. 24 plaintiff has not been under a disability, as defined in the Social 25 Security Act, from July 10, 2008, through the date of the ALJ s 26 decision. 27 /// 28 /// (A.R. 39.) activities precluded by Accordingly, the ALJ concluded that (A.R. 40.) 4 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion. 9 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 11 record can constitute substantial evidence, only those reasonably drawn 12 from the record will suffice. 13 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 5 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 10 DISCUSSION 11 12 Plaintiff claims the ALJ erred by 13 properly plaintiff s subjective symptom testimony. 14 not considering (Joint Stipulation ( Joint Stip. ) at 4-10, 21-25.) 15 16 I. The ALJ Failed To Provide Clear And Convincing Reasons 17 For Finding Plaintiff s Subjective Symptom Testimony To 18 Be Not Credible. 19 20 Once a disability claimant produces objective medical evidence of 21 an underlying impairment that is reasonably likely to be the source of 22 claimant s subjective symptom(s), all subjective testimony as to the 23 severity of the symptom(s) must be considered. 24 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 25 (9th 26 (explaining how pain and other symptoms are evaluated). 27 ALJ makes 28 thereof, he or she may only find an applicant not credible by making Cir. 1991); a see also finding of 20 C.F.R. §§ malingering based 6 Moisa v. Barnhart, 367 404.1529(a), on 416.929(a) [U]nless an affirmative evidence 1 specific findings as to credibility and stating clear and convincing 2 reasons for each. 3 considered in weighing a claimant s credibility include: 4 claimant s reputation for truthfulness; (2) inconsistencies either in 5 the claimant s testimony or between the claimant s testimony and her 6 conduct; (3) the claimant s daily activities; (4) the claimant s work 7 record; and (5) testimony from physicians and third parties concerning 8 the nature, severity, and effect of the symptoms of which the claimant 9 complains. 10 Robbins, 466 F.3d at 883. The factors to be (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). 11 12 An ALJ may not rely on a claimant s daily activities to support an 13 adverse credibility determination when those activities 14 (1) contradict claimant s other testimony; or (2) meet the threshold for 15 transferable work skills. 16 the second ground, the Ninth Circuit has noted that daily activities 17 may be grounds for an adverse credibility finding if a claimant is able 18 to spend a substantial part of his day engaged in pursuits involving the 19 performance of physical functions that are transferrable to a work 20 setting. 21 incapacitated to be eligible for benefits . . . and many home activities 22 are not easily transferable to what may be the more grueling environment 23 of the workplace, where it might be impossible to periodically rest or 24 take medication. See Orn, 495 F.3d at 639. Id. (citation omitted). do not: With respect to A claimant need not be utterly Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). 25 26 At the February 9, 2011 Administrative Hearing, plaintiff 27 testified that she has: bone degeneration in [her] neck] ; arthritis 28 in [her] entire back ; scoliosis; a steel rod, occupying the entire 7 1 length of [her] left femur ; migraines; chronic diarrhea; depression; 2 and panic attacks two to three times a week. 3 Plaintiff testified that, since 2007, she has been taking care of her 4 elderly mother, who was 82 years old at the time of the Administrative 5 Hearing. 6 fix[es] her meals ; do[es] her laundry ; and cleans the house, 7 because her mother can t do anything -- [s]he can t even carry a cup 8 of tea. 9 bathe or dress her mother and is not capable of lifting her mother if (A.R. 87-88.) (A.R. 87.) (A.R. 85-86, 97.) Specifically, plaintiff testified that she: Plaintiff testified, however, that she does not 10 she were to fall. (A.R. 92-93.) 11 testified that it takes [her] pretty much all day. 12 plaintiff vacuums, she testified that it takes [her] all day long, and 13 sometimes [she] ha[s] to do it in two days. 14 testified that she can vacuum for 30 to 45 minutes at the very most 15 before she needs to rest her back. 16 that when she rests, she generally rests for 20 minutes . . . cause 17 [she] tr[ies] to get [the vacuuming] done. 18 that she shops for groceries and can pick up a five-pound bag of 19 potatoes, but she cannot pick up a gallon of milk (just over eight 20 pounds). 21 friends, because [she] do[es]n t like to leave [her] mo[ther] alone, 22 cause [her mother] falls a lot. (A.R. 95.) When plaintiff does the laundry, she (Id.) (A.R. 93.) When (A.R. 94.) Plaintiff Plaintiff further testified (Id.) Plaintiff testified Plaintiff stated that she does not go out with her (A.R. 88.) 23 24 In addition to taking care of her mother, plaintiff also testified 25 that she takes care of her dog and cat. 26 addition to presumably feeding her animals, plaintiff testified that she 27 opens the door a few times a day so that the dog can go outside. 28 Plaintiff testified, however, that she does not walk her dog. (A.R. 90, 8 (A.R. 90.) Specifically, in 1 97.) With respect to sitting and standing, plaintiff testified that she 2 can sit for 45 minutes before she needs to change positions and can 3 stand for one hour before needing to change positions.2 (A.R. 96-97.) 4 Plaintiff testified that she is depressed, cr[ies] a lot, and has two 5 to three panic attacks a week. 6 attacks, plaintiff takes a Xanax and lay[s] down. (A.R. 97.) (A.R. 97-98.) To treat her panic 7 8 9 As noted supra, the ALJ found that plaintiff has the severe impairments of: moderate degenerative joint and disc disease of the 10 cervical and lumbar spine; osteoporosis; mild bilateral epicondylitis; 11 diarrhea; hemorrhoids; and sleep disorder. 12 found that 13 reasonably be expected to cause the alleged symptoms. (A.R. 37.) 14 Further, 15 Accordingly, the ALJ s reason for discrediting plaintiff s subjective 16 complaints must be clear and convincing. [plaintiff] s the ALJ cited medically no evidence (A.R. 35.) determinable of The ALJ also impairments malingering by could plaintiff. 17 18 In his decision, the ALJ found that [plaintiff] s statements 19 concerning the intensity, 20 [plaintiff] s alleged symptoms are not credible to the extent they are 21 inconsistent 22 Specifically, the ALJ found plaintiff to be not credible, because: 23 (1) the medical evidence does not support plaintiff s allegations of 24 totally disabling limitations; and (2) plaintiff s daily activities are 25 inconsistent with her complaints of totally disabling physical and with [his RFC persistence assessment and for limiting effects plaintiff]. of (Id.) 26 27 28 2 In her Disability Report, plaintiff indicated that she is limited in her ability to stand because of the pain [she experiences and] the metal rod [in her leg]. (A.R. 177.) 9 1 mental impairments. (A.R. 38-39.) 2 3 With respect to the ALJ s first ground, even assuming arguendo that 4 the medical evidence did not corroborate the degree of plaintiff s 5 allegations of disabling limitations, this factor cannot form the sole 6 basis for discounting plaintiff s subjective symptom testimony. Burch, 7 400 F.3d at 681; see Bunnell, 947 F.2d at 347 (noting that [i]f an 8 adjudicator 9 [plaintiff] fails to produce evidence supporting the severity of the 10 pain, there would be no reason for an adjudicator to consider anything 11 other than medical findings ). Accordingly, because the ALJ s first 12 ground cannot, by itself, constitute a clear and convincing reason for 13 discrediting plaintiff s testimony, the ALJ s credibility determination 14 rises or falls with the ALJ s second ground for discrediting plaintiff. could reject a claim of disability simple because 15 16 The ALJ s second ground for finding plaintiff to be not credible -- 17 to wit, that plaintiff s daily activities are inconsistent with her 18 complaints of totally disabling physical and mental impairments -- is 19 unavailing. In his decision, the ALJ states the following: 20 21 At the hearing, [plaintiff] testified that she had moved from 22 Colorado, specifically, to take care of her 82-year old 23 mother. Since 2007, she testified that she did everything for 24 her, she fixed her meals, did her laundry and cleaned the 25 house. 26 [Plaintiff] testified she was capable of driving and maintains 27 a drivers license. [Plaintiff] also takes care of her dog and cat. 28 10 1 (A.R. 39.) Critically, however, the ALJ fails to identify how 2 plaintiff s minimal daily activities are inconsistent with her allegedly 3 disabling limitations, particularly her alleged sitting, standing, and 4 lifting limitations. This constitutes error. 5 6 While the Commissioner cites, inter alia, Rollins v. Massanri, 261 7 F.3d 853, 857 (9th Cir. 2001), to support her argument that caring for 8 others and performing household chores, including shopping, undermines 9 a claimant s disability claim, Rollins is distinguishable from the 10 present case. 11 ways 12 undermined by her own testimony about her daily activities, such as 13 attending to the needs of her two young children, cooking, housekeeping, 14 laundry, shopping, attending therapy and various other meetings every 15 week, and so forth. 16 questionnaire, for example, Rollins stated that she attended to all of 17 [her] children s needs; meals, bathing, emotional, discipline, etc. 18 because her husband worked six days a week, usually from early in the 19 morning 20 questionnaire, that she left the house daily to go to places such as 21 her 22 appointments, and the grocery store. in which until son s (Joint Stip. at 20.) Rollins 10 school, claim to In Rollins, the ALJ pointed out have totally 261 F.3d at 857. p.m. Id. taekwondo Rollins lessons disabling pain was In her daily activities also and stated, soccer in gamers, the same doctor s Id. 23 24 In this case, while plaintiff testified that she takes care of her 25 mother by preparing meals, going to the grocery store, and performing 26 minimal household chores (albeit with rests), plaintiff also testified 27 that she does not bathe or dress her mother and could not lift her 28 mother if she were to fall. In addition, although plaintiff testified 11 1 that she takes care of her cat and dog, she also testified that she does 2 not walk her dog and, instead, opens the door a few times a day to let 3 him go in and out of the house. 4 Disability Report - Appeal that taking care of her animals is almost 5 too much for [her] to do. 6 testified that she can drive, she also indicated in her Disability 7 Report - Appeal that her neck and back are continual[l]y getting 8 worse[,] . . . [and i]t is getting to the point that [she] can hardly 9 drive [her] car any[]more . . . . 10 activities in this case 11 are In fact, plaintiff indicated in her (A.R. 196.) Further, while plaintiff (A.R. 190.) distinguishable Clearly, plaintiff s from the claimant s activities in Rollins. 12 13 Moreover, the ALJ did not explain how plaintiff s ability to 14 perform the above-noted activities translates into the ability to 15 perform full-time work. 16 (9th Cir. 2001)(noting that the mere fact that a plaintiff has carried 17 on certain daily activities, such as grocery shopping, driving a car, or 18 limited walking for exercise, does not in any way detract from her 19 credibility as to her overall disability ). 20 does not require that claimants be utterly incapacitated to be eligible 21 for benefits, and many home activities may not be easily transferable to 22 a work environment where it might be impossible to rest periodically or 23 take medication. 24 1996). See Vertigan v. Halter, 260 F.3d 1044, 1050 The Social Security Act Smolen v. Chater, 80 F.3d 1273, 1283 n.7 (9th Cir. 25 26 Accordingly, because the ALJ failed to articulate how plaintiff s 27 daily activities are at odds with her subjective symptom testimony, the 28 ALJ s reasoning cannot constitute a clear and convincing reason for 12 1 rejecting plaintiff s credibility. Thus, the ALJ s adverse credibility 2 determination constitutes reversible error.3 3 4 II. Remand Is Required. 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 9 useful purpose would be served by further administrative proceedings, or 10 where the record has been fully developed, it is appropriate to exercise 11 this discretion to direct an immediate award of benefits. 12 ( [T]he decision of whether to remand for further proceedings turns upon 13 the likely utility of such proceedings. ). 14 outstanding issues that must be resolved before a determination of 15 disability can be made, and it is not clear from the record that the ALJ 16 would be required to find the claimant disabled if all the evidence were 17 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 18 19 Remand is the appropriate remedy to allow the ALJ the opportunity 20 to remedy the above-mentioned error. 21 915, 22 articulate specific and appropriate findings, if any existed, for 23 rejecting the claimant s subjective pain testimony). On remand, the ALJ 24 must revisit plaintiff s testimony and must either credit plaintiff s 918 (9th Cir. 1993)(ordering See Dodrill v. Shalala, 12 F.3d remand so that the ALJ could 25 26 27 28 3 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 ). 13 1 testimony or give clear and convincing reasons why plaintiff s testimony 2 is 3 plaintiff s RFC, in which case additional testimony from a vocational 4 expert likely will be needed to determine what work, if any, plaintiff 5 can perform.4 not credible. After so doing, the ALJ may need to reassess 6 7 CONCLUSION 8 9 Accordingly, for the reasons stated above, IT IS ORDERED that the 10 decision of the Commissioner is REVERSED, and this case is REMANDED for 11 further proceedings consistent with this Memorandum Opinion and Order. 12 13 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 14 copies of this Memorandum Opinion and Order and the Judgment on counsel 15 for plaintiff and for defendant. 16 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 DATED: July 1, 2013 20 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 4 Although plaintiff does not challenge the ALJ s finding that her mental impairments are not severe, on remand the ALJ should consider the combined effect of all of [plaintiff] s impairments on her ability to function, without regard to whether each alone was sufficiently severe. Smolen, 80 F.3d at 1290 (emphasis added); see 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (noting that [w]e will consider all of your medically determinable impairments . . . , including your medically determinable impairments that are not severe, . . . when we assess your residual functional capacity ). 14
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