Hortencia Lara v. Michael J. Astrue, No. 5:2012cv00693 - Document 16 (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 HORTENCIA LARA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. EDCV 12-00693-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on May 7, 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 ). On June 15, 2012, the parties consented, pursuant to 28 U.S.C. 22 § 636(c), to proceed before the undersigned United States Magistrate 23 Judge. The parties filed a Joint Stipulation on January 30, 2013, in 24 which: plaintiff seeks an order reversing the Commissioner s decision 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).) 1 and remanding this case for the payment of benefits or, alternatively, 2 for further administrative proceedings; and the Commissioner requests 3 that her decision be affirmed or, alternatively, remanded for further 4 administrative proceedings. 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 7 8 On September 9, 2008, plaintiff filed an application for SSI, and 9 on October 10, 2008, she filed an application for a period of disability 10 and DIB. (Administrative Record ( A.R. ) 28.) Plaintiff, who was born 11 on January 8, 1967 (A.R. 35),2 claims to have been disabled since August 12 2, 2008 (A.R. 28) due to: 13 her legs and arms; high blood pressure; depression; and an inability to 14 walk (A.R. 63, 73). neuropathy; arthritis; weakness; numbness in 15 16 After the Commissioner denied plaintiff s claim initially and upon 17 reconsideration (A.R. 28, 63-68, 73-77), plaintiff requested a hearing 18 (A.R. 78). 19 attorney, appeared and testified at a hearing before Administrative Law 20 Judge Mason D. Harrell, Jr. (the ALJ ). (A.R. 28, 41-58.) 21 expert Corinne J. Porter also testified. (Id.) 22 ALJ denied plaintiff s claim (A.R. 28-37), and the Appeals Council 23 subsequently denied plaintiff s request for review of the ALJ s decision 24 (A.R. 1-4). On June 22, 2010, plaintiff, who was represented by an Vocational On August 13, 2010, the That decision is now at issue in this action. 25 26 27 28 2 On the alleged disability onset date, plaintiff was 41 years old, which is defined as a younger individual. (A.R. 35; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff met the insured status requirements of 4 the Social Security Act through September 30, 2010, and has not engaged 5 in substantial gainful activity since August 2, 2008, the alleged onset 6 date of her disability. 7 has the severe impairment of sensory neuropathy, but she does not have 8 an impairment or combination of impairments that meets or medically 9 equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 10 Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 11 416.925, 416.926). (A.R. 30.) The ALJ determined that plaintiff (Id.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity ( RFC ) to perform a limited range of 15 sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). 16 (A.R. 30-31.) Specifically, the ALJ found that: 17 18 [Plaintiff] can lift and carry 10 pounds occasionally and 5-6 19 pounds frequently. 20 a time with the use of a cane for a total of 2 hours out of an 21 8-hour workday. 22 has to stand and stretch for one minute for a total of 6 hours 23 out of an 8-hour workday. 24 movements of the body when twisting or turning. 25 constantly use her hands, but she can reach with her hands. 26 She can occasionally perform activities requiring agility, 27 such a[s] walking on uneven terrain, climbing ladders, and 28 working at heights. She can stand and walk for 30 minutes at She can sit for 30 minutes after which she She cannot balance or perform fast She cannot She would miss work up to twice a month. 3 1 She is limited 2 to simple, repetitive tasks due to pain medications. 3 4 (A.R. 31.) 5 6 The ALJ found that plaintiff was unable to perform her past 7 relevant work as a machine presser. 8 RFC assessment for plaintiff, and after having considered plaintiff s 9 age, education,3 and work experience, as well as the testimony of the expert, (A.R. 35.) 10 vocational 11 significant 12 perform, including that of small items assembler and production 13 inspector of items. (A.R. 35-36.) 14 plaintiff has not been under a disability, as defined in the Social 15 Security Act, from August 2, 2008, through August 13, 2010, the date of 16 the ALJ s decision. (A.R. 36-37.) numbers the ALJ found there in the national However, based upon his are economy jobs that that exist [plaintiff] in can Accordingly, the ALJ concluded that 17 18 STANDARD OF REVIEW 19 20 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 21 decision to determine whether it is free from legal error and supported 22 by substantial evidence in the record as a whole. 23 F.3d 625, 630 (9th Cir. 2007). 24 evidence as a reasonable mind might accept as adequate to support a 25 conclusion. 26 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. 27 3 28 The ALJ found that plaintiff has a limited education and is able to communicate in English. (A.R. 19.) 4 1 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 2 record can constitute substantial evidence, only those reasonably drawn 3 from the record will suffice. 4 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 5 6 Although this Court cannot substitute its discretion for that of 7 the Commissioner, the Court nonetheless must review the record as a 8 whole, weighing both the evidence that supports and the evidence that 9 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of 10 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 12 responsible for determining credibility, resolving conflicts in medical 13 testimony, and for resolving ambiguities. 14 1035, 1039 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 15 The Court will uphold the Commissioner s decision when the evidence 16 is susceptible to more than one rational interpretation. Burch v. 17 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may 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. Orn, 495 F.3d 20 at 630; see also Connett, 340 F.3d at 874. The Court will not reverse 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 1 DISCUSSION 2 3 Plaintiff claims the ALJ failed to consider properly: (1) her 4 subjective symptom testimony; and (2) the lay witness s statements. 5 (Joint Stipulation ( Joint Stip. ) at 4-15, 20-24.) 6 7 I. The ALJ Failed To Give Clear And Convincing Reasons For 8 Rejecting Plaintiff s Testimony Regarding Her Symptoms 9 and Limitations. 10 11 Once a disability claimant produces objective medical evidence of 12 an underlying impairment that is reasonably likely to be the source of 13 claimant s subjective symptom(s), all subjective testimony as to the 14 severity of the symptoms must be considered. 15 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 16 (9th 17 (explaining how pain and other symptoms are evaluated). 18 ALJ makes 19 thereof, he or she may only find an applicant not credible by making 20 specific findings as to credibility and stating clear and convincing 21 reasons for each. 22 considered in weighing a claimant s credibility include: 23 claimant s reputation for truthfulness; (2) inconsistencies either in 24 the claimant s testimony or between the claimant s testimony and her 25 conduct; (3) the claimant s daily activities; (4) the claimant s work 26 record; and (5) testimony from physicians and third parties concerning 27 the nature, severity, and effect of the symptoms of which the claimant 28 complains. 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. 416.929(a) [U]nless an affirmative evidence The factors to be (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 6 1 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). 2 3 At the June 22, 2010 administrative hearing, plaintiff testified 4 that she became disabled in August 2008, when her hands and legs became 5 numb. 6 have any sensation in her hands and [f]rom the knees down[ward] ; has 7 vision problems; has pain in her elbows, wrists, knees, and ankles; 8 loses her balance very often and, thus, uses a cane or a walker to 9 ambulate longer distances; can stand for 30 minutes at a time, after 10 which time she gets numb from the waist down and her feet get weak and 11 they give in ; can sit for 20 minutes at a time before experiencing back 12 pain; and can lift a maximum of 2-3 pounds. 13 Plaintiff also testified that she cannot perform fine manipulations or 14 engage in repetitive work with her hands. 15 Plaintiff testified that she can perform some chores without assistance, 16 but she performs them in sections with breaks. 17 also can drive for approximately one mile before her legs begin to 18 cramp. 19 she could stand and stretch every 30 minutes and lift no more than five 20 pounds at a time, plaintiff testified that she maybe . . . could do it 21 if she were trained, but she fears her pain would be too much for her to 22 keep her job. (A.R. 44.) (Id.) Plaintiff testified, inter alia, that she: does not (A.R. 44, 49, 51-52.) (A.R. 49-51, 53-54.) (A.R. 54.) Plaintiff When asked if she could perform a sit-down job where (A.R. 52.) 23 24 As noted supra, the ALJ found that plaintiff has the severe 25 impairment of sensory neuropathy. (A.R. 30.) 26 [plaintiff] s medically determinable impairments could reasonably be 27 expected to cause the alleged symptoms. 28 cited no evidence of malingering by plaintiff. 7 The ALJ also found that (A.R. 32.) Further, the ALJ Accordingly, the ALJ s 1 reason for discrediting plaintiff s subjective complaints must be clear 2 and convincing. 3 4 In his decision, the ALJ found that [plaintiff] s statements 5 concerning the intensity, persistence and limiting effects of [her] 6 symptoms are not credible to the extent they are inconsistent with [the 7 ALJ s RFC assessment for plaintiff]. 8 plaintiff s testimony regarding her subjective symptoms to be not 9 credible, because: (1) the medical (A.R. 32.) evidence The ALJ found does not support 10 plaintiff s allegations of totally disabling limitations; (2) plaintiff 11 gave inconsistent responses regarding her double vision; (3) plaintiff 12 demonstrated give-away weakness during motor testing; (4) plaintiff s 13 treating physician, Idermohan Luthra, M.D., questioned whether plaintiff 14 has true left upper extremity dysmetria; and (5) plaintiff was more 15 concerned about her inability to obtain disability [benefits] rather 16 than [her medical] examination. (A.R. 33.) 17 18 With respect to the ALJ s first ground, even assuming arguendo that 19 the medical evidence did not corroborate the degree of plaintiff s 20 allegations of disabling limitations, this factor cannot form the sole 21 basis for discounting plaintiff s subjective symptom testimony. 22 400 F.3d at 681; see Bunnell, 947 F.2d at 347 (noting that [i]f an 23 adjudicator 24 [plaintiff] fails to produce evidence supporting the severity of the 25 pain, there would be no reason for an adjudicator to consider anything 26 other than medical findings ). 27 ground cannot, by itself, constitute a clear and convincing reason for 28 discrediting plaintiff s testimony, the ALJ s credibility determination could reject a claim of disability simple Burch, because Accordingly, because the ALJ s first 8 1 rises or falls with the ALJ s other grounds for discrediting plaintiff. 2 3 The ALJ s second ground for finding plaintiff to be not credible is 4 not clear and convincing. In his decision, the ALJ found plaintiff to 5 be not credible, because despite normal ocular examinations, she gave 6 inconsistent responses to Dr. Luthra regarding her double vision. 7 (A.R. 33.) 8 reported that plaintiff complains of double vision some time. 9 294.) In his September 18, 2008 treatment note, Dr. Luthra (A.R. Dr. Lutra also reported that plaintiff states she sees double, 10 but it was inconsistent response. 11 finding, however, it appears that Dr. Luthra attributed plaintiff s 12 intermittent or inconsistent double vision to a possible defect in 13 plaintiff s neuromuscular junction, rather than to a lack of candor or 14 credibility 15 plaintiff has diplopia [(double vision)], which is inconsistent which 16 raises a suspicion whether it is a neuromuscular junction defect. ) 17 such, the ALJ s reasoning does not constitute a clear and convincing 18 reason for finding plaintiff to be not credible. on plaintiff s (A.R. 295.) part. (See A.R. Contrary to the ALJ s 296 - finding that As 19 20 The ALJ s third ground for finding plaintiff to be not credible -- 21 i.e., because she demonstrated give-away weakness during motor testing 22 . . . , which indicates exaggeration of her condition (A.R. 33) -- is 23 unavailing. 24 it can also be a result of pain. 25 LEXIS 30022, at *35 n.25 (M.D. Pa. Mar. 6, 2012)(noting that give-away 26 weakness can be a sign of either lack of effort or pain ). 27 Luthra s treatment notes do not provide any insight into the cause of 28 plaintiff s give-away weakness -- i.e., pain or exaggeration -- the While give-away weakness can be a result of poor effort, See Benner v. Astrue, 2012 U.S. Dist. 9 Because Dr. 1 ALJ s presumption that plaintiff s give-away weakness results from an 2 exaggeration of her condition is not supported by substantial evidence 3 and, thus, does not constitute a clear and convincing reasoning for 4 finding plaintiff to be not credible. 5 6 The ALJ s fourth reason for finding plaintiff to be not credible - 7 i.e., because Dr. Luthra questioned whether [plaintiff] has true left 8 upper extremity dysmetria (A.R. 33) - is also unavailing. 9 treatment notes, Dr. Luthra noted that plaintiff s coordination was In his 10 normal and reported the following: May be questionable left upper 11 extremity dysmetria. However, Dr. Luthra s statement, 12 with nothing more, does not implicate plaintiff s credibility. As such, 13 it cannot constitute a clear and convincing reason for finding plaintiff 14 to be not credible. (A.R. 292.) 15 16 The ALJ also found plaintiff to be not credible because she was 17 benefit-seeking, noting that one of 18 indicated that plaintiff was concerned about her inability to obtain 19 disability benefits. 20 every claimant who applies for benefits seeks pecuniary gain, and this 21 fact does not indicate a lack of credibility. 22 U.S. Dist. LEXIS 43877, at *14 (C.D. Cal. March 20, 2013)(citing Ratto 23 v. Sec y, Dept. of Health & Hum. Servs., 839 F. Supp. 1415, 1428-29 (D. 24 Or. 1993)(noting that [i]f the desire or expectation of obtaining 25 benefits were by itself sufficient to discredit a claimant s testimony, 26 then no claimant . . . would be found credible )); see also Yang v. 27 Comm r of SSA, 488 Fed. Appx. 203, 205 (9th Cir. 2012)(same). 28 ALJ s assertion on this point does not constitute a clear and convincing (A.R. 33, 274.) 10 Dr. Luthra s treatment notes Generally speaking, however, Bell v. Colvin, 2013 Thus, the 1 reason for finding plaintiff to be not credible. 2 3 Accordingly, for the aforementioned reasons, the ALJ failed to give 4 clear and convincing reasons, as required, for finding plaintiff to be 5 not credible. This constitutes error.4 6 7 II. The ALJ Failed To Consider Properly The Lay Witness s 8 Description 9 Of Plaintiff s Limitations And Daily Activities. 10 11 In evaluating the credibility of a claimant s assertions of 12 functional limitations, the ALJ must consider lay witnesses reported 13 observations of the claimant. 14 family members in a position to observe a claimant s symptoms and daily 15 activities are competent to testify as to [the claimant s] condition. 16 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. §§ 17 404.1513(d), 416.913(d) ( [W]e may also use evidence from other sources 18 to show the severity of your impairment(s). . . . 19 include, but are not limited to . . . spouses, parents and other 20 caregivers, siblings, other Stout, 454 F.3d at 1053. relatives, friends, [F]riends and Other sources neighbors, and 21 22 23 24 25 26 27 4 To the extent the Commissioner attempts to absolve the ALJ of any error by stating that he included all the limitations [plaintiff] described at the hearing [in his RFC assessment], this attempt is unavailing. (A.R. 33.) Not all plaintiff s alleged limitations were included in the ALJ s RFC assessment. For example, at the administrative hearing, plaintiff testified that she may be able to perform a job that required her to lift no more than 5 pounds at a time. In his RFC assessment for plaintiff, however, the ALJ found plaintiff capable of lifting and carrying 10 pounds occasionally and 5-6 pounds frequently. (A.R. 31.) Clearly, the ALJ s RFC assessment for plaintiff exceeds her alleged limitation of being able to lift no more than 5 pounds a time. Further, the ALJ s RFC assessment does not appear to include any accommodation for plaintiff s alleged double vision problem. 28 11 1 clergy. ). If an ALJ disregards the testimony of a lay witness, the 2 ALJ must provide reasons that are germane to each witness. 3 Astrue, 4 Additionally, the reasons germane to each witness must be specific. 5 Stout, 454 F.3d at 1054. 557 F.3d 1113, 1115 (9th Cir. 2009)(citation Bruce v. omitted). 6 7 In his decision, the ALJ found that [m]ost of the limitations and 8 activities of daily living . . . described [by plaintiff s daughter, 9 Jazmin Lara, we]re actually consistent with [his RFC assessment]. 10 (A.R. 34.) Nevertheless, the ALJ gave little weight to some of Jazmin 11 Lara s descriptions of plaintiff s limitations and activities of daily 12 living, because they were inconsistent. 13 found Jazmin s statement that her mother can shop[] for groceries on a 14 weekly basis to be inconsistent with Jazmin s statement that her mother 15 cannot shop for clothes. 16 which comes to mind that [plaintiff] cannot shop for clothing is that it 17 might be difficult for her to try on clothing; however, this should not 18 be a major obstacle if [plaintiff] knows her size. 19 does not find these two statements to be inconsistent. 20 noted, trying on clothes likely would be difficult for plaintiff, 21 particularly in view of her sensory neuropathy and stability problems. 22 Further, contrary to the ALJ s suggestion, even if plaintiff knows her 23 size, it is likely that she would still try on the clothing before 24 purchasing it. (Id.) (Id.) For example, the ALJ The ALJ noted that [t]he only reason (Id.) The Court As the ALJ Thus, the ALJ s rationale is unconvincing. 25 26 The ALJ also gave little weight to Jazmin Lara s observations, 27 because her description of plaintiff s limitations ostensibly were not 28 supported by the evidence of record. 12 Specifically, the ALJ took issue 1 with Jazmin Lara s claims that plaintiff: (1) was precluded from 2 attending events with large crowds; (2) could not walk for more than 3 half of a block without needing to rest; and (3) had weakness in her 4 hands. 5 not discredit lay witness testimony, because it is not supported by the 6 medical evidence in the record. Bruce, 557 F.3d at 1116. 7 there supports 8 regarding her mother s limitations, including, inter alia, plaintiff s 9 sensory neuropathy (A.R. 34.) The Ninth Circuit has held, however, that an ALJ may is medical evidence that diagnosis and Jazmin findings that Moreover, Lara s she statements has slow and 10 cautious gait and tends to lose her balance. (A.R. 292.) Thus, the 11 ALJ erred in rejecting Jazmin Lara s statements regarding plaintiff s 12 limitations on this basis. 13 14 Lastly, the ALJ gave little weight to Jazmin Lara s lay 15 observations, because she is the daughter of [plaintiff] and has the 16 usual familial devotion. 17 statements of a lay witness if the ALJ finds the witness to be biased. 18 See, e.g., Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)(finding 19 the ALJ s consideration of the claimant s prior girlfriend s close 20 relationship with the claimant and desire to help him as a germane 21 reason for disregarding her testimony). However, [t]he fact that a lay 22 witness is a family member cannot be a ground for rejecting his or her 23 testimony. 24 claimant every day is of particular value . . . ; such lay witnesses 25 will often be family members. 26 Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009)(finding that 27 being an interested party in the abstract was insufficient to reject a 28 spouse s testimony). (A.R. 34.) An ALJ may discredit the To the contrary, testimony from lay witnesses who see the Smolen, 80 F.3d at 1289; see also Here, the ALJ discredited Jazmin Lara simply 13 1 because she was plaintiff s daughter. As such, the ALJ s reasoning does 2 not constitute a specific and germane reason for discrediting Jazmin 3 Lara s observations. 4 5 Accordingly, for the aforementioned reasons, the ALJ failed to set 6 forth specific and germane reasons, as required, for affording Jazmin 7 Lara s description of plaintiff s limitations little weight. 8 constitutes reversible error. This 9 10 III. Remand Is Required. 11 12 The decision whether to remand for further proceedings or order an 13 immediate award of benefits is within the district court s discretion. 14 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 15 useful purpose would be served by further administrative proceedings, or 16 where the record has been fully developed, it is appropriate to exercise 17 this discretion to direct an immediate award of benefits. 18 ( [T]he decision of whether to remand for further proceedings turns upon 19 the likely utility of such proceedings. ). 20 outstanding issues that must be resolved before a determination of 21 disability can be made, and it is not clear from the record that the ALJ 22 would be required to find the claimant disabled if all the evidence were 23 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 24 25 Remand is the appropriate remedy to allow the ALJ the opportunity 26 to remedy the above-mentioned deficiencies and errors. 27 Dodrill, 28 articulate specific and appropriate findings, if any existed, for 12 F.3d at 918 (ordering 14 remand so that the See, e.g., ALJ could 1 rejecting the claimant s subjective pain testimony). On remand, the ALJ 2 must correct the above-mentioned deficiencies and errors. 3 so, the ALJ may need to reassess plaintiff s RFC, in which case 4 additional testimony from a vocational expert likely will be needed to 5 determine what work, if any, plaintiff can perform. After doing 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: September 4, 2013 20 21 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 15
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