Maria Sanchez v. Michael J. Astrue, No. 5:2012cv00613 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. (See attached Order.) (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MARIA SANCHEZ, 13 Plaintiff, 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. No. ED CV 12-613-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on May 1, 2012, seeking review of the Commissioner s denial of 22 her application for Supplemental Security Income payments. The parties filed Consents to 23 proceed before the undersigned Magistrate Judge on May 17, 2012, and May 20, 2012. Pursuant 24 to the Court s Order, the parties filed a Joint Stipulation on January 2, 2013, that addresses their 25 positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation 26 under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on July 5, 1963. [Administrative Record ( AR ) at 44.] She completed 4 three years of college [AR at 134], and has past relevant work experience as a nursing assistant, 5 an instructional aide, and a retail inventory specialist. [AR at 128.] 6 On October 22, 2008, plaintiff filed an application for Supplemental Security Income, 7 alleging that she has been unable to work since October 6, 2008, due to back problems, sleep 8 problems, numbness in her legs, depression, and arthritis. [AR at 44, 110-13, 126-35.] After her 9 application was denied initially and on reconsideration, plaintiff requested a hearing before an 10 Administrative Law Judge ( ALJ ). [AR at 49-60.] A hearing was held on January 18, 2011, at 11 which time plaintiff appeared with counsel and testified on her own behalf. A vocational expert 12 also testified. [AR at 22-43.] On January 27, 2011, the ALJ determined that plaintiff was not 13 disabled. [AR at 11-17.] On March 26, 2012, the Appeals Council denied plaintiff s request for 14 review. [AR at 1-5, 7.] This action followed. 15 16 III. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 19 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 20 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 21 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 In this context, the term substantial evidence means more than a mere scintilla but less 23 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 24 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 25 1257. When determining whether substantial evidence exists to support the Commissioner s 26 decision, the Court examines the administrative record as a whole, considering both adverse and 27 supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 28 2 1 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must 2 defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 3 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 4 5 IV. 6 THE EVALUATION OF DISABILITY 7 Persons are disabled for purposes of receiving Social Security benefits if they are unable 8 to engage in any substantial gainful activity owing to a physical or mental impairment that is 9 expected to result in death or which has lasted, or is expected to last, for a continuous period of 10 at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 11 12 A. THE FIVE-STEP EVALUATION PROCESS 13 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 14 whether a claimant is disabled. 20 C.F.R. § 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 15 Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether 16 the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled 17 and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, 18 the second step requires the Commissioner to determine whether the claimant has a severe 19 impairment or combination of impairments significantly limiting her ability to do basic work 20 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 21 a severe impairment or combination of impairments, the third step requires the Commissioner 22 to determine whether the impairment or combination of impairments meets or equals an 23 impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, Subpart P, 24 Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 25 claimant s impairment or combination of impairments does not meet or equal an impairment in the 26 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 27 residual functional capacity to perform her past work; if so, the claimant is not disabled and the 28 3 1 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 2 relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case 3 of disability is established. The Commissioner then bears the burden of establishing that the 4 claimant is not disabled, because she can perform other substantial gainful work available in the 5 national economy. The determination of this issue comprises the fifth and final step in the 6 sequential analysis. 20 C.F.R. § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 7 8 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 9 In this case, at step one, the ALJ determined that plaintiff had not engaged in any 10 substantial gainful activity since the application date, October 22, 2008. [AR at 13.] At step two, 11 the ALJ concluded that plaintiff has the following severe combination of medically determinable 12 impairments: degenerative disc disease of the lumbar spine, morbid obesity, and degenerative 13 joint disease of the right shoulder. [Id.] At step three, the ALJ determined that plaintiff s 14 impairments do not meet or medically equal any of the impairments in the Listing. [Id.] The ALJ 15 further determined that plaintiff retained the residual functional capacity ( RFC )1 to perform light 16 work as defined in 20 C.F.R. § 416.967(b),2 except that she can only: lift and carry 20 pounds 17 occasionally and 10 pounds frequently; stand and walk six hours in an eight-hour day; sit six hours 18 in an eight-hour day; push and pull 20 pounds occasionally and 10 pounds frequently with both 19 the upper and lower extremities; occasionally climb ramps, stairs, and uneven surfaces; 20 occasionally bend, stoop, kneel, crouch, squat, and crawl; and occasionally reach overhead with 21 the right upper extremity. The ALJ further found that plaintiff cannot climb ladders, ropes, or 22 scaffolds, and cannot work around unprotected heights, moving machinery, or vibration. [AR at 23 24 1 25 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 20 C.F.R. § 416.967(b) defines light work as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 4 1 13-14.] At step four, the ALJ concluded that plaintiff can perform her past relevant work as a 2 teacher s aide. [AR at 16.] Accordingly, the ALJ determined that plaintiff has not been under a 3 disability from October 22, 2008, to January 27, 2011, the date of the decision. [AR at 16-17.] 4 5 V. 6 THE ALJ'S DECISION 7 Plaintiff contends that: (1) the ALJ failed to make proper findings concerning plaintiff s 8 credibility, and (2) there is an inconsistency between the ALJ s RFC determination for plaintiff and 9 the Dictionary of Occupational Titles description for the job of teacher s aide. [Joint Stipulation 10 ( JS ) at 2-3.] As set forth below, the Court agrees with plaintiff, in part, and remands the matter 11 for further proceedings. 12 13 PLAINTIFF S CREDIBILITY 14 To determine whether a claimant s testimony regarding subjective pain or symptoms is 15 credible, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 16 1035-36 (9th Cir. 2007). First, the ALJ must determine whether the claimant has presented 17 objective medical evidence of an underlying impairment which could reasonably be expected to 18 produce the pain or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.3d 341, 344 19 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first test, the ALJ may only reject the 20 claimant s testimony about the severity of her symptoms upon (1) finding evidence affirmatively 21 suggesting that the claimant was malingering, or (2) offering specific, clear and convincing reasons 22 for doing so. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1999); see also Lingenfelter, 504 23 F.3d at 1036; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The factors to be 24 considered in weighing a claimant s credibility include: (1) the claimant s reputation for 25 truthfulness; (2) inconsistencies either in the claimant s testimony or between the claimant s 26 testimony and her conduct; (3) the claimant s daily activities; (4) the claimant s work record; and 27 (5) testimony from physicians and third parties concerning the nature, severity, and effect of the 28 5 1 symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 2 Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). If properly supported, the ALJ s 3 credibility determination is entitled to great deference. See Green v. Heckler, 803 F.2d 528, 532 4 (9th Cir. 1986). 5 Plaintiff made statements and gave testimony concerning the severity of her symptoms in 6 a November 30, 2008, Exertional Activities Questionnaire [AR at 145-48] and at her January 18, 7 2011, hearing before the ALJ. [AR at 22-43.] Plaintiff testified that during the two years before 8 the hearing, she was prevented from working by [t]he pain and numbness in [her] legs. [AR at 9 29-30.] She also testified that the pain begins in the lumbar area of her back and goes down her 10 legs, but that the pain is worse in her right leg. [AR at 34.] She stated that when her legs go 11 numb, they grow weak until she can no longer stand. [AR at 145.] She testified that it is difficult 12 for her to bend and kneel (which was a requirement of her former job as an instructional aide), and 13 stated that her condition was a little bit worse at the time of the hearing as compared with the 14 time she filed her application. [AR at 27-28, 34.] Plaintiff also testified that she can sit for one to 15 one and one-half hours at a time, and can stand for one to one and one-half hours at a time, but 16 only when she mov[es] back and forth -- not when she stand[s] still. [AR at 36.] Plaintiff stated 17 that walking around the block is very painful for her; that it takes her 30 minutes; and that she 18 has to stop three to four times in the process. [AR at 39, 145.] 19 Plaintiff reported that her average day consists of getting up, fixing breakfast, and sit[ting] 20 down [and] stand[ing] up on [and] off. [AR at 145.] She also reported that she has to rest for 21 about an hour, two to three times a day. [AR at 38, 147.] She stated that she used to do 22 everything in [her] house, such as iron, vacuum, sweep, and mop, but cannot do these chores 23 anymore. [AR at 147.] She indicated that when she washes dishes, she ha[s] to stop [and] sit 24 down for [a] couple of minutes before she is able to finish, and reported that if she stands for a 25 long time while washing dishes[,] [her] back starts pounding. [AR at 145, 147.] In addition, when 26 she helps her daughter do the laundry, she ha[s] problems with [her] legs [and] then ... ha[s] 27 28 6 1 problems sleeping at night. [AR at 145.] She stated that she does not perform any yard work, 2 but shops for groceries once a week and drives when she really need[s] to. [AR at 34, 146.] 3 At step one, the ALJ found that plaintiff s medically determinable impairments could 4 reasonably be expected to cause the alleged symptoms. [AR at 14.] The ALJ nevertheless 5 concluded that plaintiff s statements concerning the intensity, persistence and limiting effects of 6 these symptoms are not credible to the extent they are inconsistent with the [ALJ s RFC findings 7 for plaintiff]. [Id.] Thus, at step two, as the record contains no evidence of malingering by 8 plaintiff,3 the ALJ was required to offer specific, clear and convincing reasons for rejecting 9 plaintiff s subjective symptom testimony. See Lingenfelter, 504 F.3d at 1036. General findings 10 are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 11 undermines the claimant s complaints. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) 12 (quoting Lester, 81 F.3d at 834); see also Dodrill, 12 F.3d at 918. 13 It appears from the ALJ s decision that he discounted plaintiff s credibility because he found 14 her statements concerning the severity of her impairments to be inconsistent with: (1) her 15 conservative therapy for her back and leg pain; (2) her daily activities; and (3) the objective 16 medical evidence. [See AR at 14-16.] 17 First, although the ALJ stated, in discussing plaintiff s back and leg pain, that she has 18 received only conservative therapy, the ALJ did not specify how plaintiff s treatment for her pain 19 has been conservative. [See AR at 14.] Moreover, the only other place in the ALJ s decision 20 where he discussed plaintiff s conservative treatment for her pain is in his summary of an April 21 1, 2009, examining note from Dr. Charles R. Stevens, a pain management physician. [AR at 15, 22 237-39.] Citing the note, the ALJ stated: Dr. Stevens concluded [plaintiff] had suboptimal pain 23 control with conservative therapy consisting of physical therapy, NSAIDS, lumbar epidural steroid 24 injections, anticonvulsants, and adjunctive medications. Dr. Stevens recommended spinal cord 25 stimulation. [AR at 15 (citations omitted).] However, Dr. Stevens full assessment (after viewing 26 27 28 3 The ALJ made no finding that plaintiff was malingering, nor does the evidence suggest plaintiff was doing so. 7 1 an MRI of plaintiff s lumbar spine and performing a physical examination) of the efficacy of 2 plaintiff s treatment was that: [Plaintiff] has tried and failed conservative therapy such as physical 3 therapy, NSAIDS such as ibuprofen, lumbar epidural steroid injections, anticonvulsants, [and] 4 adjunctive medications[,] and continues to have suboptimal pain control. [Plaintiff] is currently 5 opiate dependent[,] requiring [V]icodin5 up to 6 tabs per day and [Z]anaflex 4mg ... but continues 6 to require ER visit as her pain gets so severe. [AR at 239 (emphasis and footnote added).] Dr. 7 Stevens determination that conservative therapy options have failed to relieve plaintiff s back pain, 8 his opinion that plaintiff is opiate dependent, and his observation that plaintiff s pain is at times 9 so severe as to require visits to the emergency room, do not detract from plaintiff s statements 10 concerning the severity of her pain, but support them. The ALJ erred by selectively relying on 11 portions of Dr. Stevens statements to conclude that plaintiff s treatment for her pain was so 12 conservative as to undermine her statements about the intensity, persistence, and limiting effects 13 of that pain. See Reddick, 157 F.3d at 722-23 (It is impermissible for the ALJ to develop an 14 evidentiary basis by not fully accounting for the context of materials or all parts of the testimony 15 and reports. ); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (An ALJ is not permitted 16 to reach a conclusion simply by isolating a specific quantum of supporting evidence. ). 17 Next, the ALJ rejected plaintiff s pain testimony because he determined that plaintiff 18 continues to perform many activities of daily living [AR at 16], stating elsewhere in his decision 19 that plaintiff described a typical day as doing laundry, helping around the house, cooking, and 20 cleaning. [AR at 14.] Contrary to the ALJ s characterization of plaintiff s statements, plaintiff 21 reported that her average day consists of getting up, fixing breakfast, sitting down and standing 22 up on and off, and resting for about an hour, two to three times a day. She also stated that she 23 can no longer perform many household chores such as ironing, vacuuming, sweeping, and 24 mopping. The ALJ did not discuss these portions of plaintiff s statements in his decision, and 25 therefore erred by ignoring relevant evidence in the record. See Gallant v. Heckler, 753 F.2d 26 27 28 5 Vicodin contains hydrocodone, which is in a class of medications called opiate (narcotic) analgesics. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601006.html. 8 1 1450, 1456 (9th Cir. 1984) (error for an ALJ to ignore or misstate the competent evidence in the 2 record in order to justify her conclusion); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) 3 ( [A]n ALJ must weigh all the evidence and may not ignore evidence that suggests an opposite 4 conclusion. ) (citation omitted). Moreover, while plaintiff did testify that she does the laundry, she 5 also stated that performing this chore gives her problems with her legs and problems sleeping at 6 night. Similarly, plaintiff testified that she cooks, but the ALJ did not elicit (and the record does 7 not contain) any testimony about what plaintiff can cook or how long it takes her, and plaintiff 8 reported that she cannot even finish washing the dishes without sitting down to rest. Engaging 9 in some household chores or activities is not necessarily inconsistent with a finding of disability. 10 See Gallant, 753 F.2d at 1453 (benefits awarded on appeal to a claimant experiencing constant 11 leg and back pain, despite the claimant s ability to cook and wash dishes); see also Cooper v. 12 Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (stating that the ability to assist with some household 13 tasks was not determinative of disability) (citing Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 14 1981) (disability claimant need not vegetate in a dark room excluded from all forms of human and 15 social activity )). In light of the above, substantial evidence does not support the ALJ s conclusion 16 that plaintiff can sustain gainful employment, since plaintiff s ability to cook, wash the dishes with 17 breaks, do some laundry, shop for groceries once a week, and drive when she really need[s] to, 18 does not necessarily translate into an ability to do activities that are transferable to a work 19 setting. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that a claimant is not 20 required to be utterly incapacitated in order to be disabled and that many home activities are 21 not easily transferable to what may be the more grueling environment of the workplace, where it 22 might be impossible to periodically rest or take medication ); see also Smolen v. Chater, 80 F.3d 23 1273,1284 n.7 (9th Cir. 1996). 24 Finally, while an ALJ may consider whether a lack of objective medical evidence supports 25 the degree of limitation, this cannot form the sole basis for discounting pain testimony. Burch 26 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The rationale for this restriction is that pain 27 testimony may establish greater limitations than can medical evidence alone. Id. at 680 (citing 28 9 1 Social Security Ruling6 96-7p). Thus, even assuming the ALJ s characterization of the medical 2 evidence is supported by substantial evidence, the ALJ may rely upon this rationale only if his 3 other reasons for discounting plaintiff s credibility are proper. As discussed supra, they are not. 4 The ALJ failed to offer any legally adequate reasons for discounting plaintiff s credibility. 5 Remand is warranted.7 6 7 VI. 8 REMAND FOR FURTHER PROCEEDINGS 9 As a general rule, remand is warranted where additional administrative proceedings could 10 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 11 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 12 In this case, remand is appropriate for the ALJ to properly evaluate plaintiff s credibility. 13 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; 14 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 15 for further proceedings consistent with this Memorandum Opinion. 16 17 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 18 19 DATED: January 18, 2013 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 6 Social Security Rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 7 The Court exercises its discretion not to address plaintiff s second contention of error. 10

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