Cheresse Bonitajean Schneider v. Carolyn W. Colvin, No. 5:2012cv01511 - Document 16 (C.D. Cal. 2013)

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)

Download PDF

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 CHERESSE BONITAJEAN SCHNEIDER, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-1511-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 September 13, 2012, seeking review 27 of the Commissioner s denial of benefits. The parties filed a consent 28 to proceed before a United States Magistrate Judge on October 15, 1 2012. Plaintiff filed a motion for summary judgment on February 19, 2 2013. Defendant filed a motion for summary judgment on March 12, 3 2013. The Court has taken the motions under submission without oral 4 argument. See L.R. 7-15; Order, filed September 17, 2012. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability since May 24, 2010, based primarily on alleged back problems (Administrative Record ( A.R. ) 55-56, 64-65, 10 174-77, 186-87). At a February 10, 2012 administrative hearing, 11 Plaintiff testified that she suffers from back pain of allegedly 12 disabling severity (A.R. 185-96). 13 14 On March 1, 2012, an Administrative Law Judge ( ALJ ) found that 15 Plaintiff has the following severe impairments: 16 secondary to disc disease with evidence of facet arthropathy at L5-S1, 17 status post anterior fusion with LT cage in 2002; obesity; 18 hypertension; and history of gout (A.R. 14 (adopting treating 19 physician diagnoses at A.R. 110-11, 157-58, 160, 162-63)). 20 determined that, notwithstanding these impairments, Plaintiff 21 assertedly retains the residual functional capacity for a limited 22 range of light work, and allegedly can perform significant numbers of 23 jobs existing in the national economy (A.R. 15, 19-20 (adopting in 24 part state agency physicians residual functional capacity assessment 25 at A.R. 140-48, and vocational expert testimony at A.R. 198-200)). 26 finding Plaintiff not disabled, the ALJ deemed less than credible 27 Plaintiff s allegations concerning the intensity, persistence, and 28 limiting effects of her symptoms (A.R. 16). 2 chronic back pain The ALJ On July 17, 2012, the In 1 Appeals Council denied review (A.R. 5-7). 2 3 SUBSEQUENT EVIDENTIARY SUBMISSIONS 4 AND APPLICABLE STANDARDS OF REVIEW 5 6 Under 42 U.S.C. section 405(g), this Court reviews the 7 Administration s decision to determine if: (1) the Administration s 8 findings are supported by substantial evidence; and (2) the 9 Administration used correct legal standards. See Carmickle v. 10 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 11 499 F.3d 1071, 1074 (9th Cir. 2007). 12 relevant evidence as a reasonable mind might accept as adequate to 13 support a conclusion. 14 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 15 454 F.3d 1063, 1067 (9th Cir. 2006). Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 16 17 Plaintiff submitted with her Motion copies of medical records 18 dated from May 15, 2012. See Plaintiff s Motion, page 4, Exhibits B 19 and C. 20 ongoing/worsening condition. 21 she sent to her counsel s office regarding additional medical care she 22 reportedly received. 23 additional medical care included another back surgery on December 6, 24 2012. Plaintiff asserts that these records document her Plaintiff also submitted correspondence See Plaintiff s Motion, Exhibit A. The Id. 25 26 Where the Appeals Council considers additional evidence but 27 denies review, the additional evidence becomes part of the 28 Administrative Record for purposes of the Court s analysis. 3 See 1 Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen 2 the Appeals Council considers new evidence in deciding whether to 3 review a decision of the ALJ, that evidence becomes part of the 4 administrative record, which the district court must consider when 5 reviewing the Commissioner s final decision for substantial 6 evidence. ; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 7 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (9th 8 Cir. 2011) (courts may consider evidence presented for the first time 9 to the Appeals Council to determine whether, in light of the record 10 as a whole, the ALJ s decision was supported by substantial evidence 11 and was free of legal error ); see generally 20 C.F.R. §§ 404.970(b), 12 416.1470(b). 13 14 In the present case, however, Plaintiff s additional evidence was 15 not presented to the Appeals Council. Consequently, the Court may not 16 consider the additional evidence except in analyzing whether to remand 17 the case under sentence six of 42 U.S.C. section 405(g). 18 six remand would be appropriate only if the additional evidence is 19 new and material, and there exists good cause why the evidence 20 was not previously presented to the Administration. 21 405(g); Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001); Booz v. 22 Secretary of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 23 1984). 24 is new and material and whether there exists good cause for the 25 failure to present the evidence earlier. 26 below, the case is remanded under sentence four of 42 U.S.C. section 27 405(g). 28 the case otherwise would have been remanded under sentence six. A sentence 42 U.S.C. § The Court need not determine whether the additional evidence For the reasons discussed Therefore, the Court need not and does not determine whether 4 DISCUSSION 1 2 3 Plaintiff argues that the ALJ failed to state sufficient reasons 4 for deeming less than fully credible Plaintiff s testimony regarding 5 the severity of her pain. The Court agrees. 6 7 Where, as here, the ALJ finds medically determinable impairments 8 [which] could reasonably be expected to cause some of the alleged 9 symptoms (A.R. 16), the ALJ may not discount the claimant s testimony 10 regarding the severity of the symptoms without making specific, 11 cogent findings, supported in the record, to justify discounting such 12 testimony. 13 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. 14 Secretary, 846 F.2d 581, 584 (9th Cir. 1988).1 15 conclusory findings do not suffice. 16 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be 17 sufficiently specific to allow a reviewing court to conclude the ALJ 18 rejected the claimant s testimony on permissible grounds and did not 19 arbitrarily discredit the claimant s testimony ) (internal citations 20 and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 21 (9th Cir. 2001) (the ALJ must specifically identify the testimony Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see Generalized, See Moisa v. Barnhart, 367 F.3d 22 23 24 25 26 27 28 1 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 at 1234; 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 [the ALJ] finds not to be credible and must explain what evidence 2 undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th 3 Cir. 1996) ( The ALJ must state specifically which symptom testimony 4 is not credible and what facts in the record lead to that 5 conclusion. ); see also Social Security Ruling 96-7p. 6 7 In the present case, the ALJ appeared to state four reasons for 8 finding less than fully credible Plaintiff s testimony regarding the 9 severity of her pain. The ALJ stated: (1) the objective medical 10 record assertedly did not fully corroborate Plaintiff s allegations of 11 disabling pain; (2) the objective medical record assertedly did not 12 corroborate any alleged increase in the severity of Plaintiff s pain 13 from the level of pain with which Plaintiff had been able to work 14 prior to the alleged disability onset date; (3) Plaintiff assertedly 15 received only routine conservative treatment for pain; and (4) there 16 assertedly are no medical source statements from a physician 17 endorsing Plaintiff s allegation of disability or establishing greater 18 limitations than those found by the ALJ (A.R. 16-18). 19 below, these stated reasons are legally insufficient under the 20 circumstances of this case. As discussed 21 22 With regard to stated reason (1), the absence of fully 23 corroborative medical evidence cannot form the sole basis for 24 rejecting the credibility of a claimant s subjective complaints. 25 Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 26 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 27 (9th Cir. 2005) ( lack of medical evidence can be a factor in 28 rejecting credibility, but cannot form the sole basis ). 6 See 1 Stated reason (2) is a subsection of stated reason (1), and thus 2 cannot independently support the rejection of Plaintiff s credibility. 3 See id. 4 supposition, contrary to Plaintiff s testimony, that her pain did not 5 increase over time. 6 evidence to corroborate an increase of the pain over time cannot 7 justify the rejection of Plaintiff s credibility. The probity of Plaintiff s prior ability to work rests on the The asserted failure of the objective medical See id.2 8 9 With regard to stated reason (3), it is true that a 10 conservative course of treatment may sometimes properly discredit a 11 claimant s allegations of disabling symptoms. 12 Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied, 552 U.S. 13 1141 (2008) (treatment with over-the-counter pain medication is 14 conservative treatment sufficient to discount the claimant s 15 testimony regarding allegedly disabling pain). 16 however, the ALJ s characterization of Plaintiff s treatment as 17 conservative is dubious and unpersuasive, given the fact that 18 Plaintiff s treatment included prescription pain medication, a nerve 19 root block, possible facet blocks, acupuncture, and physical therapy 20 (A.R. 88, 93-94, 111-12, 135-36). 21 WL 4547065, at *1 (E.D.N.Y. Dec. 1, 2009) (observing that when the 22 claimant did not respond well to conservative therapies, the 23 claimant s doctor recommended, inter alia, nerve root blocks and 24 physical therapy). 25 /// See, e.g., Parra v. In the present case, See, e.g., Wright v. Astrue, 2009 26 27 28 2 Additionally, the Court observes that some medical evidence suggests Plaintiff s level of pain did increase over time (A.R. 115). 7 1 With regard to stated reason (4), the asserted lack of supporting 2 medical opinion might be materially different from the asserted lack 3 of supporting objective medical evidence, discussed above. 4 the Court need not decide this issue because the asserted lack of 5 supporting medical opinion has little probity under the circumstances 6 of the present case. 7 record that any examining physician offered, or was ever requested to 8 offer, any opinion regarding Plaintiff s pain severity or functional 9 capacity.3 10 However, There is no indication in the administrative Despite the ALJ s duty fully and fairly to develop the record,4 no consulting physician examined Plaintiff. 11 12 Defendant s motion also cites Plaintiff s testimony regarding her 13 departure from employment in 2010 (Defendant s Motion, page 6). 14 Defendant claims that Bruton v. Massanari, 268 F.3d 824 (9th Cir. 15 2001) ( Bruton ) stands for the proposition that an ALJ may consider 16 the fact that a claimant stopped working for reasons other than 17 disability in assessing credibility (id.). 18 whether the ALJ actually relied on the reason(s) why Plaintiff stopped 19 working in 2010 in assessing Plaintiff s credibility. It is unclear, however, The ALJ s 20 21 22 23 3 The only possible exception to this statement consists of an August 24, 2010 opinion by Plaintiff s treating physician that Plaintiff was then medically incapable of serving as a juror (A.R. 161). 4 24 25 26 27 28 See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ( The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant s interest are considered. This duty exists even when the claimant is represented by counsel); see also Carillo Marin v. Secretary, 758 F.2d 14, 17 (1st Cir. 1985) ( if the Secretary is doubtful as to the severity of [the claimant s] disorder, the appropriate course is to request a consultative examination . . . ); accord Reed v. Massanari, 270 F.3d 838, 842-43 (9th Cir. 2001). 8 1 decision states: The claimant testified she last worked in 2010 due 2 to personal reasons. 3 getting worse (A.R. 16). 4 determination does not commence until the second paragraph following 5 the paragraph containing the quoted statements (A.R. 16). 6 Furthermore, Plaintiff s testimony regarding the reason(s) why she 7 stopped working in 2010 is itself unclear (as the quoted statements 8 from the ALJ s decision suggest) (see A.R. 184). 9 decision is distinguishable from the present case. She stated her back was in too much pain and was The ALJ s explanation for his credibility Finally, the Bruton In Bruton, the ALJ 10 (and the Ninth Circuit) relied on the fact that the claimant waited 11 nine months after having been laid off before seeking any medical 12 attention, as well as the fact that the claimant failed to seek any 13 treatment for the claimant s pain. 14 comparable facts exist in the present case. See Bruton 268 F.3d at 828. No 15 16 In addition to failing to state legally sufficient reasons for 17 finding Plaintiff s pain testimony less than fully credible, the ALJ 18 also erred by implicitly rejecting Plaintiff s testimony regarding the 19 side effects of her medication. 20 medication makes her very drowsy, forcing her to take naps and 21 causing her to be unable focus (A.R. 192, 194-95; see also A.R. 73, 22 88). 23 such side effects. 24 at *11 (W.D.N.Y. April 29, 2013); Powell v. Commissioner, 2013 WL 25 1189715, at *1 (E.D. Mich. March 22, 2013). 26 to side effects that are in fact associated with the claimant s 27 medication(s), the ALJ may not disregard such testimony unless the 28 ALJ makes specific findings similar to those required for excess pain Plaintiff testified that her Tramadol, one of Plaintiff s medications, reasonably can cause See, e.g., Caternolo v. Astrue, 2013 WL 1819264, 9 When a claimant testifies 1 testimony. Varney v. Secretary, 846 F.2d at 585; accord Cuevas v. 2 Apfel, 1999 WL 76789, at *5 (N.D. Cal. Feb. 8, 1999); see also 28 3 C.F.R. § 404.1529(c)(3)(iv) ( We will consider . . . side effects of 4 any medication you take or have taken to alleviate your pain or other 5 symptoms ); Social Security Ruling 96-7p (mandating consideration of 6 side effects of any medications the individual takes or has taken to 7 alleviate pain or other symptoms ).5 8 failed to mention Plaintiff s testimony concerning the allegedly 9 debilitating side effects of her medication. In the present case, the ALJ Thus, the ALJ 10 necessarily failed to state legally sufficient reasons for finding 11 such testimony not credible. 12 13 Because the circumstances of this case suggest that the further 14 administrative review could remedy the errors discussed herein, remand 15 is appropriate. 16 see Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 17 (remand is an option where the ALJ fails to state sufficient reasons 18 for rejecting a claimant s excess symptom testimony); but see Orn v. 19 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 20 cite Connett for the proposition that [w]hen an ALJ s reasons for 21 rejecting the claimant s testimony are legally insufficient and it is 22 clear from the record that the ALJ would be required to determine the 23 claimant disabled if he had credited the claimant s testimony, we 24 remand for a calculation of benefits ) (quotations omitted); see also 25 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 26 27 28 5 Social security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 10 1 a court need not credit as true improperly rejected claimant 2 testimony where there are outstanding issues that must be resolved 3 before a proper disability determination can be made); see generally 4 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 5 administrative determination, the proper course is remand for 6 additional agency investigation or explanation, except in rare 7 circumstances). 8 9 CONCLUSION 10 11 For all of the foregoing reasons,6 Plaintiff s and Defendant s 12 motions for summary judgment are denied and this matter is remanded 13 for further administrative action consistent with this Opinion. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: May 8, 2013. 18 19 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 6 28 The Court need not and does not reach any of the other issues raised by Plaintiff. 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.