Denny J Hayley v. Michael J Astrue, No. 5:2012cv00651 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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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 DENNY J. HAYLEY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-651-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on May 2, 2012, seeking review of the 27 Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on May 22, 2012. 1 Plaintiff filed a motion for summary judgment on September 17, 2012. 2 Defendant filed a motion for summary judgment on October 17, 2012. 3 The Court has taken the motions under submission without oral 4 argument. See L.R. 7-15; Order, filed May 3, 2012. 5 6 BACKGROUND 7 8 Plaintiff asserts disability based primarily on alleged 9 psychiatric impairments (Administrative Record ( A.R. ) 32-1006). At 10 an administrative hearing, Plaintiff testified he currently suffers 11 from psychiatric symptoms of allegedly disabling severity (A.R. 38, 12 53-54, 58-59). 13 substance abuse, but claimed he had ceased using methamphetamine three 14 months before the hearing and had ceased drinking alcohol longer ago 15 than that (A.R. 36, 40, 44-45). Plaintiff also testified he previously engaged in 16 17 An Administrative Law Judge ( ALJ ) found that Plaintiff has 18 severe impairments including affective mood disorder, posttraumatic 19 stress disorder and substance abuse (A.R. 18). 20 that these impairments disable Plaintiff, but deemed Plaintiff s 21 substance abuse to be a factor material to the determination of 22 disability, within the meaning of 20 C.F.R. ยง 404.1535 (A.R 18-25). 23 The ALJ assessed a residual functional capacity for a limited range of 24 light work (A.R. 20). The ALJ determined The ALJ stated: 25 26 If the claimant stopped the substance abuse, the undersigned 27 finds that the claimant s medically determinable impairments 28 could reasonably be expected to produce the alleged 2 1 symptoms; however, the claimant s statements concerning the 2 intensity, persistence and limiting effects of these 3 symptoms are not credible to the extent they are 4 inconsistent with the residual functional capacity 5 assessment for the reasons explained below. 6 7 (A.R. 21). The ALJ denied disability benefits. 8 Id. The Appeals Council denied review (A.R. 2-4). 9 10 STANDARD OF REVIEW 11 12 Under 42 U.S.C. section 405(g), this Court reviews the 13 Administration s decision to determine if: (1) the Administration s 14 findings are supported by substantial evidence; and (2) the 15 Administration used correct legal standards. 16 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 17 499 F.3d 1071, 1074 (9th Cir. 2007). 18 relevant evidence as a reasonable mind might accept as adequate to 19 support a conclusion. 20 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 21 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 22 23 DISCUSSION 24 25 Plaintiff s motion asserts that the ALJ found Plaintiff s 26 testimony regarding the allegedly disabling severity of his current 27 symptoms not credible, and did so without stating sufficient 28 supporting reasons. Defendant s motion asserts that [t]he ALJ found 3 1 Plaintiff s symptom testimony credible, but only to the extent that it 2 reflected Plaintiff s symptoms while he abused substances 3 (Defendant s motion at 3). 4 either party correctly has interpreted the ALJ s decision, remand is 5 required for the reasons discussed below. Although the Court is not confident that 6 7 Assuming the truth of Plaintiff s testimony that he ceased 8 abusing substances months prior to the hearing,1 if the assertion in 9 Defendant s motion is correct, then the assertion in Plaintiff s 10 motion is also correct and the administrative decision cannot stand. 11 In other words, assuming Plaintiff ceased abusing substances three 12 months or more prior to the hearing, if the ALJ actually found that 13 Plaintiff experienced symptoms of disabling severity only while he 14 abused substances, then the ALJ necessarily found not credible 15 Plaintiff s hearing testimony regarding the current severity of his 16 symptoms. 17 asserting that the ALJ did not state sufficient reasons for this 18 credibility determination. And, under these assumptions, Plaintiff would be correct in 19 20 Where, as here, the ALJ finds medically determinable impairments 21 [which] could reasonably be expected to produce the alleged symptoms 22 (A.R. 21), the ALJ may not discount the claimant s testimony regarding 23 the severity of the symptoms without making specific, cogent 24 findings, supported in the record, to justify discounting such 25 testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see 26 27 28 1 Neither party directly contests this assumption. As discussed infra, varying interpretations of the ALJ s decision are conceivable. 4 1 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. 2 Secretary, 846 F.2d 581, 584 (9th Cir. 1988).2 3 conclusory findings do not suffice. 4 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be 5 sufficiently specific to allow a reviewing court to conclude the ALJ 6 rejected the claimant s testimony on permissible grounds and did not 7 arbitrarily discredit the claimant s testimony ) (internal citations 8 and quotations omitted); 9 (9th Cir. 2001) (the ALJ must specifically identify the testimony 10 [the ALJ] finds not to be credible and must explain what evidence 11 undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th 12 Cir. 1996) ( The ALJ must state specifically which symptom testimony 13 is not credible and what facts in the record lead to that 14 conclusion. ); see also Social Security Ruling 96-7p. Generalized, See Moisa v. Barnhart, 367 F.3d Holohan v. Massanari, 246 F.3d 1195, 1208 15 16 In the present case, the ALJ s decision promises reasons 17 explained below for the determination that Plaintiff s symptom 18 testimony is not credible to the extent . . . inconsistent with the 19 residual functional capacity assessment (A.R. 21). 20 determination in the ALJ s decision, however, is merely a discussion 21 of the medical evidence (A.R. 21-23). [B]elow this The absence of fully 22 23 24 25 26 27 28 2 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 5 1 corroborative medical evidence cannot form the sole basis for 2 rejecting the credibility of a claimant s subjective complaints. 3 Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 4 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 5 (9th Cir. 2005) ( lack of medical evidence can be a factor in 6 rejecting credibility, but cannot form the sole basis ). 7 appears that the ALJ did not state sufficient reasons for the ALJ s 8 credibility determination. See Hence, it 9 10 Thus far, this Court s opinion has proceeded on the assumption 11 that the ALJ found not entirely credible Plaintiff s hearing testimony 12 regarding the severity of Plaintiff s current symptoms. 13 the ALJ s decision support this assumption. 14 decision expressly states that the claimant s statements concerning 15 the intensity, persistence and limiting effects of the symptoms are 16 not credible to the extent they are inconsistent with the residual 17 functional capacity assessment . . . (A.R. 21). 18 decision phrases the residual functional capacity assessment in the 19 present tense, i.e., mentally, [Plaintiff] can perform simple 20 repetitive non-public tasks with only non-intense interaction with 21 coworkers and supervisors (A.R. 20) (emphasis added). Some parts of For example, the ALJ s Elsewhere, the ALJ s 22 23 Yet, other parts of the ALJ s decision might support a contrary 24 interpretation of the ALJ s credibility determination. 25 the decision suggest that the ALJ believed Plaintiff s testimony 26 regarding the severity of Plaintiff s current symptoms, but also 27 believed that those symptoms were of disabling severity only because 28 of Plaintiff s ongoing substance abuse. 6 These parts of Under this interpretation, 1 the only testimony the ALJ would have found not credible would have 2 been Plaintiff s testimony that he had ceased abusing substances 3 months before the hearing. 4 repeated phrasing in the ALJ s decision, if the claimant stopped the 5 substance abuse . . . (A.R. 19-21, 24-25). 6 appears to imply a belief that Plaintiff had not yet stopped his 7 substance abuse.3 8 . . . severe . . . substance abuse, not that Plaintiff has a history 9 of severe substance abuse (A.R. 18) (emphasis added). This interpretation finds support in the This repeated phrasing The ALJ s decision also states that Plaintiff has Further, 10 medical expert Dr. Glassmire (whose testimony the ALJ appears to 11 adopt) testified that the symptoms [Plaintiff] has are much worse 12 because of the substance use (A.R. 52-53) (emphasis added). 13 14 On the third hand, a different analysis of the credibility issues 15 is also conceivable. An ALJ could believe all of Plaintiff s 16 testimony and yet deny disability benefits. 17 (1) Plaintiff ceased abusing substances months before the hearing; and 18 (2) as of the time of the hearing, Plaintiff still was suffering 19 symptoms of disabling severity; but (3) Plaintiff did not satisfy the 20 twelve month requirement4 because his symptoms would be expected to 21 diminish materially in the near future, as the residual effects of 22 long-term substance abuse continued to dissipate. An ALJ could believe: There appears to be 23 3 24 25 And yet, the ALJ s decision states elsewhere that Plaintiff is credible concerning the following symptoms and limitations: he has the same limitations after he is clean from methamphetamine and marijuana for 3 months (A.R. 19). 26 4 27 28 See Barnhart v. Walton, 535 U.S. 212, 217-22 (2002) (successful disability claimant s inability to engage in substantial gainful activity must last, or be expected to last, for at least twelve months). 7 1 scant support in the ALJ s decision for this conceivable analysis, 2 however. 3 statement in the ALJ s decision that Plaintiff s claimed symptoms are 4 not credible to the extent they are inconsistent with the residual 5 functional capacity assessment . . . (A.R. 21) (emphasis added). 6 Elsewhere, the ALJ s decision does say that the undersigned finds 7 that the claimant is credible concerning the following symptoms and 8 limitations: he has the same limitations after he is clean from 9 methamphetamine and marijuana for 3 months (A.R. 19). In particular, this analysis appears irreconcilable with the In context, 10 however, the phrase same limitations may not mean same degree of 11 limitations on Plaintiff s ability to function. 12 mean only that Plaintiff has the same types of limitations. 13 sentences later, the ALJ s decision states, Absent the substance 14 abuse, he would not meet a Listing (A.R. 19). 15 the ALJ had found Plaintiff s testimony entirely credible, presumably 16 the ALJ would have omitted any finding that the testimony was not 17 credible (A.R. 21). The phrase used may Two Most significantly, if 18 19 In any event, the evident ambiguity of the ALJ s decision itself 20 requires remand for clarification. See, e.g., Coronado v. Astrue, 21 2011 WL 3348066, at *8 (E.D. Cal. Aug. 2, 2011) (where ALJ s decision 22 was ambiguous in addressing the claimant s credibility, and where the 23 credibility determination overlapped and blended with the ALJ s 24 discussion of the medical record, remand was appropriate); Rodriguez 25 v. Astrue, 2011 WL 1103119, at *9 (E.D. Cal. March 22, 2011) ( remand 26 for further proceedings is proper due to the ambiguity of the ALJ s 27 decision ); see also Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th 28 Cir. 1981) (Administration must include an explanatory statement of 8 1 the subordinate factual findings on which its ultimate conclusions are 2 based, so that a reviewing court may know the basis for the decision). 3 Because the circumstances of the case suggest that the further 4 5 administrative review could clarify the ambiguities in the ALJ s 6 decision and otherwise remedy the errors discussed herein, remand is 7 appropriate. 8 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 9 (remand is an option where the ALJ fails to state sufficient reasons 10 for rejecting a claimant s excess symptom testimony); but see Orn v. 11 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 12 cite Connett for the proposition that [w]hen an ALJ s reasons for 13 rejecting the claimant s testimony are legally insufficient and it is 14 clear from the record that the ALJ would be required to determine the 15 claimant disabled if he had credited the claimant s testimony, we 16 remand for a calculation of benefits ) (quotations omitted); see also 17 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that 18 a court need not credit as true improperly rejected claimant 19 testimony where there are outstanding issues that must be resolved 20 before a proper disability determination can be made); see generally 21 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 22 administrative determination, the proper course is remand for 23 additional agency investigation or explanation, except in rare 24 circumstances). 25 /// 26 /// 27 /// 28 /// McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 9 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 26, 2012. 10 11 12 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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