James Anthony Vasquez v. Michael J Astrue, No. 5:2012cv01302 - Document 23 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick re: MOTION for Summary Judgment, Memorandum of Points and Authorities 21 , MOTION for Summary Judgment Social Security Administration 22 , ORDER by Magistrate Judge Charles F. Eick. IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (rp)
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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 JAMES ANTHONY VASQUEZ, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-1302-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 August 9, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on January 9, 2013. 1 Plaintiff filed a motion for summary judgment on May 3, 2013.1 2 Defendant filed a motion for summary judgment on May 29, 2013. 3 Court has taken the motions under submission without oral argument. 4 See L.R. 7-15; Minute Order, filed January 4, 2013. The 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 Plaintiff, a former mechanic and sales representative, asserts 9 disability since October 31, 2008, based primarily on alleged pain in 10 his hip, back and knee (Administrative Record ( A.R. ) 34-66, 135-37, 11 154-60, 162-64). 12 at an administrative hearing that he suffers from pain of disabling 13 severity (A.R. 34-66, 154, 160, 162). Plaintiff asserted in written reports and testified 14 15 An Administrative Law Judge ( ALJ ) found Plaintiff has severe 16 impairments including degenerative disc disease of the lumbar spine 17 . . . post surgical repair of right hip injury; status post gun shot 18 to right knee; and morbid obesity (A.R. 20). 19 found Plaintiff not disabled (A.R. 20-24). 20 deemed Plaintiff s assertions of disabling pain not credible (A.R. 21 22). 22 /// However, the ALJ also In so finding, the ALJ The Appeals Council denied review (A.R. 1-3). 23 1 24 25 26 27 28 Plaintiff s motion violates this Court s January 4, 2013 Minute Order ( No papers filed in support of or in opposition to any motion for summary judgment shall exceed ten (10) pages in length ). Counsel for Plaintiff shall heed the Court s orders in the future. The Court previously admonished this same attorney for violation of this same type of order. See Gordon v. Astrue, CV 12-2301-E. If this attorney s violations persist, the Court may accompany future admonishments with monetary sanctions. 2 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 12 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 DISCUSSION 15 16 I. 17 The ALJ Materially Erred in Connection with the Issue of Plaintiff s Credibility. 18 19 20 Where, as here, an ALJ finds that a claimant s medically 21 determinable impairments reasonably could be expected to cause the 22 alleged symptoms, the ALJ may not discount the claimant s testimony 23 regarding the severity of the symptoms without making specific, 24 cogent findings, supported in the record, to justify discounting such 25 testimony. 26 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. 27 /// 28 /// Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see 3 1 Secretary, 846 F.2d 581, 584 (9th Cir. 1988).2 2 conclusory findings do not suffice. 3 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be 4 sufficiently specific to allow a reviewing court to conclude the ALJ 5 rejected the claimant s testimony on permissible grounds and did not 6 arbitrarily discredit the claimant s testimony ) (internal citations 7 and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 8 (9th Cir. 2001) (the ALJ must specifically identify the testimony 9 [the ALJ] finds not to be credible and must explain what evidence Generalized, See Moisa v. Barnhart, 367 F.3d 10 undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th 11 Cir. 1996) ( The ALJ must state specifically which symptom testimony 12 is not credible and what facts in the record lead to that 13 conclusion. ); see also Social Security Ruling 96-7p. 14 15 In the present case, the only mention of Plaintiff s credibility 16 is found in section 5 of the ALJ s decision. 17 Therein, the ALJ concludes: 18 19 After careful consideration of the evidence, the undersigned 20 finds that the claimant s medically determinable impairments 21 could reasonably be expected to cause the alleged symptoms; 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. 4 1 however, the claimant s statements concerning the intensity, 2 persistence and limiting effects of these symptoms are not 3 credible to the extent they are inconsistent with the above 4 residual functional capacity assessment (A.R. 22). 5 6 Immediately preceding this conclusion, the ALJ summarizes 7 Plaintiff s testimony (A.R. 21-22). Immediately following this 8 conclusion, the ALJ summarizes the medical evidence (A.R. 22). 9 Nowhere in section 5 (or anywhere else in the decision), does the ALJ 10 state any specific reasons for her credibility conclusion. The ALJ 11 thereby erred. 12 (W.D. Wash. Aug. 12, 2010), adopted, 2010 WL 3584546 (W.D. Wash. 13 Sept. 10, 2010) (ALJ erred by stating in a conclusory fashion that the 14 claimant s statements concerning the intensity, persistence, and 15 limiting effects of those symptoms were not credible to the extent 16 they were inconsistent with the ALJ s residual functional capacity 17 finding, although the ALJ implied that the claimant s statements were 18 not substantiated by objective medical evidence 3); see also Gonzalez 19 v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ( We are wary of 20 speculating about the basis of the ALJ s conclusion . . . ); Lewin v. 21 Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981) (ALJ s decision should 22 include a statement of the subordinate factual foundations on which 23 the ALJ s ultimate factual conclusions are based, so that a reviewing Id.; see Spytek v. Astrue, 2010 WL 3584549, at *5 24 25 26 27 28 3 An ALJ may not rely exclusively on the objective medical evidence in rejecting a claimant s credibility. Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( lack of medical evidence can be a factor in rejecting credibility, but cannot form the sole basis ). 5 1 court may know the basis for the decision); Coronado v. Astrue, 2011 2 WL 3348066, at *8 (E.D. Cal. Aug. 2, 2011) (where the reasons for the 3 ALJ s credibility determination were uncertain, and the determination 4 overlapped and blended with the ALJ s discussion of the medical 5 record, remand was appropriate). 6 7 Defendant invites the Court to infer that the ALJ based her 8 credibility determination on an array of considerations: the lack of 9 significant clinical findings, inconsistencies between Plaintiff s 10 claimed limitations and objective medical findings, the receipt of 11 unemployment benefits, . . . activities of daily living, Plaintiff s 12 report that he was not taking pain medication, and Plaintiff s 13 admission that he did not walk or exercise despite living behind a 14 junior high school track (Defendant s motion 2, 6-7).4 15 decline Defendant s invitation. 16 specifically identify any of these considerations as the reason or 17 reasons for the ALJ s credibility determination. 18 mentions some of these considerations, but does not expressly base the 19 credibility determination on any of them. 20 cannot affirm the credibility determination on the basis of any of 21 these considerations. 22 Cir. 2001) (court cannot affirm the decision of an agency on a ground 23 that the agency did not invoke in making its decision ); Watts v. 24 Astrue, 2012 WL 2577525, at *8-9 (E.D. Cal. July 3, 2012) (remand 25 required where ALJ s decision discussed the evidence potentially The Court must The ALJ s decision does not The ALJ s decision Consequently, the Court See Pinto v. Massanari, 249 F.3d 840, 847 (9th 26 27 28 4 Defendant also argues that the ALJ had exclusive, direct access to unspecified physical and linguistic clues helpful in judging credibility (Defendant s motion at 7-8). 6 1 bearing on the claimant s credibility, but provide[d] no discussion 2 how this evidence impacted the ALJ s view of Plaintiff s 3 credibility ). 4 5 II. Remand is Appropriate. 6 7 Because the circumstances of the case suggest that further 8 administrative review could remedy the ALJ s errors, remand is 9 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 10 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 11 (remand is an option where the ALJ fails to state sufficient reasons 12 for rejecting a claimant s excess symptom testimony); but see Orn v. 13 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 14 cite Connett for the proposition that [w]hen an ALJ s reasons for 15 rejecting the claimant s testimony are legally insufficient and it is 16 clear from the record that the ALJ would be required to determine the 17 claimant disabled if he had credited the claimant s testimony, we 18 remand for a calculation of benefits ) (quotations omitted); see also 19 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that 20 a court need not credit as true improperly rejected claimant 21 testimony where there are outstanding issues that must be resolved 22 before a proper disability determination can be made); see generally 23 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 24 administrative determination, the proper course is remand for 25 additional agency investigation or explanation, except in rare 26 circumstances). 27 /// 28 /// 7 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: June 19, 2013. 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 8
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