Kimberly Rivera v. Commissioner of Social Security Administration, No. 8:2009cv00468 - Document 14 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. IT IS HEREBY ORDERED that this action is remanded for further proceedings consistent with this Memorandum Opinion and Order. (See Order for further details) (db)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 KIMBERLY A. RIVERA, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 09-0468-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Kimberly A. Rivera ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying her application for disability 21 insurance benefits ( DIB ) pursuant to Title II of the Social Security 22 Act. For the reasons stated below, this action is remanded for further 23 proceedings. 24 25 I. Factual and Procedural Background Plaintiff was born on March 8, 1968. (Administrative Record ( AR ) 26 27 at 65). She has a tenth grade education and 28 experience as a medical biller. (AR at 35, 65-66). past relevant work 1 Plaintiff filed an application for DIB on July 27, 2007, alleging 2 that she has been disabled since April 27, 2002, due to porphyria 3 (disorders 4 encephalitis, chronic obstructive pulmonary disease ( COPD ), shortness 5 of breath, back pain causing difficulty with sitting, standing and 6 walking, and a vision impairment. (AR at 136, 156). The Social Security 7 Administration 8 reconsideration levels. (AR at 77-80, 83-87). of certain denied enzymes in Plaintiff s the biosynthetic application at the pathway), initial and 9 A de novo hearing was held before Administrative Law Judge ( ALJ ) 10 Keith Dietterle on July 30, 2008. (AR at 62-74). Plaintiff opted to 11 proceed without representation from counsel. (AR at 62-63). A vocational 12 expert and a medical expert testified at the hearing. (AR at 64-65, 70). 13 On October 7, 2008, the ALJ issued a decision denying benefits. (AR at 14 30-37). The ALJ found that Plaintiff: (1) has not engaged in substantial 15 gainful activity since her alleged onset date of disability (step 1); 16 (2) suffers from the severe impairments of COPD, chronic pain syndrome, 17 porphyria, and back problems (step 2); (3) does not have any impairments 18 that meet or equal a listed impairment (step 3); (4) has the residual 19 functional capacity ( RFC ) to perform a range of light work;1 (5) is 20 unable to perform her past relevant work as a medical biller; but (6) is 21 capable of performing other work that exists in significant numbers in 22 23 24 25 26 27 28 1 Specifically, the ALJ found that Plaintiff is able to lift and carry 15 pounds occasionally and 10 pounds frequently; stand for one hour at a time for a total of three hours during an eight-hour workday; walk for two hours at a time for a total of three hours in an eight-hour workday; sit for two hours at a time for a total of four hours in an eight-hour workday; use lower extremities for guidance; and occasionally climb stairs, bend, stoop, kneel, crouch, and crawl. (AR at 33). Plaintiff must avoid unprotected heights, dangerous or fast-moving machinery, hot or cold environments and exposure to dust, fumes or gases, and climbing ladders and scaffolds. (AR at 33). 2 1 the economy. (AR at 32-33, 35-36). 2 Plaintiff sought Appeals Council review and submitted new evidence 3 from her treating physician in support of the request. (AR at 13). The 4 Appeals Council considered the new evidence, but declined to reopen 5 Plaintiff s case, and denied review on January 21, 2009. (AR at 1-3, 9- 6 11). 7 Plaintiff commenced this action for judicial review on April 16, 8 2009. On October 19, 2009, the parties filed a Joint Stipulation 9 addressing the disputed issues. Those issues are whether: (1) the 10 Appeals Council failed to properly consider new and material evidence 11 from Plaintiff s treating physician; and (2) the ALJ failed to properly 12 consider Plaintiff s subjective complaints. Plaintiff seeks remand for 13 payment 14 administrative proceedings. (Joint Stipulation at 24). The Commissioner 15 requests that the ALJ s decision be affirmed. (Joint Stipulation at 25). 16 The Joint Stipulation has been taken under submission without oral 17 argument. of benefits or, in the alternative, remand for further 18 19 20 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 22 findings and decision should be upheld if they are free from legal error 23 and are supported by substantial evidence based on the record as a 24 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 25 (1971); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). 26 Substantial evidence means such evidence as a reasonable person might 27 accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; 28 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). It is more than a 3 1 scintilla, but less than a preponderance. Reddick, 157 F.3d at 720. To 2 determine whether substantial evidence supports a finding, the reviewing 3 court must review the administrative record as a whole, weighing both 4 the evidence that supports and the evidence that detracts from the 5 Commissioner s conclusion. Id. If the evidence can reasonably support 6 either affirming or reversing, the reviewing court may not substitute 7 its judgment for that of the Commissioner. Id. at 720-721. 8 9 III. Discussion 10 Plaintiff reported that she is unable to sit or stand for long 11 periods, needs to use oxygen due to shortness of breath, has a vision 12 impairment causing 13 anything. (AR at 144-45, 156). Plaintiff also testified that she has 14 pain on a daily basis and severe pain in her back and lower extremities 15 three to four times a week. (AR at 67). Plaintiff contends that the ALJ 16 failed to give proper consideration to her testimony concerning the 17 nature and extent of her pain and functional limitations. (Joint 18 Stipulation at 11-18, 21-23). 19 difficulty reading, and does not walk nor lift The determination of credibility and the resolution of conflicts in 20 the testimony 21 Commissioner. Morgan v. Commissioner of Social Security, 169 F.3d 595, 22 599 (9th Cir. 1999); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). 23 In general, an ALJ s assessment of credibility should be given great 24 weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The ALJ may 25 employ ordinary techniques of credibility evaluation and may take into 26 account prior inconsistent statements or a lack of candor by the 27 witness. Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir. 1989). However, 28 once a are claimant functions has of presented the ALJ medical 4 acting evidence on of behalf an of the underlying 1 impairment, the ALJ may not discredit the claimant s testimony regarding 2 subjective pain and other symptoms merely because the symptoms, as 3 opposed 4 evidence. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 5 2007); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Light v. 6 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). [T]he ALJ can 7 reject the claimant s testimony about the severity of her symptoms only 8 by offering specific, clear and convincing reasons for doing so. 9 Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 10 to the impairments, are unsupported by objective medical 1281 (9th Cir. 1996). 11 Here, the ALJ discounted Plaintiff s credibility because Plaintiff 12 stopped working to care for her ailing mother. (AR at 34, 156). The ALJ 13 attributed too much weight to Plaintiff s reason for leaving her 14 previous job in assessing credibility. A review of the record reveals 15 that Plaintiff stopped working in July 2001, a full nine months before 16 her alleged onset date. (AR at 136, 156). Thus, the fact that Plaintiff 17 stopped working for non-medical reasons was not a proper basis for the 18 adverse credibility determination. 19 The ALJ also found that the medical evidence did not support 20 Plaintiff s subjective complaints. (AR at 34). The ALJ noted that the 21 greater portion of the medical records pertained to treatment after 22 Plaintiff s date last insured and that the records preceding Plaintiff s 23 date last insured did not establish there was ever a 12-month period of 24 time during which she would have been unable to perform work. (AR at 25 34). The asserted lack of objective medical evidence in support of 26 Plaintiff s subjective symptom testimony is not an acceptable reason for 27 rejecting Plaintiff s subjective testimony. Lingenfelter, 504 F.3d at 28 1035-36; Reddick, 157 F.3d at 722; Light, 119 F.3d at 792. Further, the 5 1 question of whether the medical evidence established that Plaintiff was 2 precluded from working for a continuous 12-month period relates to the 3 ultimate determination of disability, and is not a proper basis for 4 rejecting credibility. Accordingly, the ALJ s credibility determination 5 is not supported by substantial evidence in the record. 6 In general, the choice whether to reverse and remand for further 7 administrative proceedings, or to reverse and simply award benefits, is 8 within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 9 1178 (9th Cir. 2000) (holding that the district court s decision whether 10 to 11 discretionary and is subject to review for abuse of discretion)). The 12 Ninth Circuit has observed that the decision whether to remand for 13 further proceedings turns upon the likely utility of such proceedings. 14 Id. at 1179; see Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) 15 (noting 16 appropriate if enhancement of the record would be useful ). remand for that further a remand proceedings for further or for payment administrative of benefits proceedings is is 17 When an ALJ fails to articulate sufficient reasons for rejecting a 18 claimant s pain testimony, courts have some flexibility in determining 19 whether to remand for further proceedings. Vasquez v. Astrue, 572 F.3d 20 586, 593 (9th Cir. 2009); Connett v. Barnhart, 340 F.3d 871, 876 (9th 21 Cir. 2003) (discussing the Ninth Circuit s conflicting case law and 22 holding that the doctrine is not mandatory because the court has some 23 flexibility in applying the crediting as true theory ). In this case, 24 it is unclear whether Plaintiff s testimony should be credited, and if 25 so, to what extent. Therefore, further administrative proceedings would 26 be useful. Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993) (remanding 27 for the ALJ to repeat the step four analysis, articulating specific 28 findings for rejecting [the plaintiff s] pain testimony . . . among 6 1 other things).2 2 ORDER 3 Accordingly, IT IS HEREBY ORDERED that this action is remanded 4 for further proceedings consistent with this Memorandum Opinion and 5 Order. 6 DATED: November 10, 2009 7 8 9 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The Court finds that on remand the Commissioner should also consider the letter received from Plaintiff s treating physician, Howard K. Bland, M.D. (AR at 13). On October 2008, after the ALJ issued the decision denying benefits, Dr. Bland prepared a letter discussing Plaintiff s impairments. (AR at 13). Dr. Bland opined that Plaintiff has been unable to maintain any gainful employment since she was hospitalized in June 2004. (AR at 13). The Appeals Council declined to reopen Plaintiff s case. (AR at 2-3). The Appeals Council reasoned that Dr. Bland s opinion lacked any specificity with respect to Plaintiff s limitations prior to her date last insured of September 30, 2004. (AR at 2). The Court disagrees with the Appeals Council s conclusion. Dr. Bland s letter is properly considered on appeal, as the Appeals Council examined it in the context of denying review. See Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993) (considering on appeal both the ALJ s decision and the additional material submitted to the Appeals Council ); see also Harman, 211 F.3d 1172, 1180 (9th Cir. 2000) ( We properly may consider the additional materials because the Appeals Council addressed them in the context of denying Appellant s request for review ); Lingenfelter, 504 F.3d 1028, 1030 n. 2 (9th Cir. 2007); Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996). Dr. Bland summarized Plaintiff s impairments and directly addressed Plaintiff s ability to work during the relevant period. (AR at 13). Thus, there is a reasonable possibility that Dr. Bland s letter could have affected the disability determination, had it been presented to the ALJ. See Booz v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (new evidence is material when it creates a reasonable possibility that the outcome of the case would be different). Thus, Plaintiff should have an opportunity to present this new evidence at the administrative level in support of her application. 7
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