Cathy J Gerber v. Michael J Astrue, No. 8:2009cv00983 - Document 13 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the foregoing reasons, the Agency's decision is reversed and the case is remanded for further consideration. IT IS SO ORDERED. (ca)
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Cathy J Gerber v. Michael J Astrue Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CATHY GERBER, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 09-983 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff’s appeal of a decision by Defendant 19 Social Security Administration (“the Agency”), denying her application 20 for Disability Insurance benefits (“DIB”). 21 ALJ erred when she: 1) found that Plaintiff was not credible; and 22 2) determined that her mental impairment was not severe. 23 at 4-16, 22-26.) 24 the ALJ erred and that remand is warranted. (Joint Stip. For the following reasons, the Court concludes that II. BACKGROUND 25 26 Plaintiff claims that the Plaintiff applied for DIB on January 23, 2006, claiming that she 27 was disabled due to, among other things, multiple sclerosis and 28 depression. (Administrative Record (“AR”) 106-08, 116.) The Agency Dockets.Justia.com 1 denied the application initially and on reconsideration. (AR 64-70, 2 75-79.) 3 Administrative Law Judge (“ALJ”). 4 Plaintiff appeared with counsel at the hearing and testified. 5 63.) 6 benefits. 7 Appeals Council, which denied review. 8 commenced this action. Plaintiff then requested and was granted a hearing before an (AR 81-85.) On April 22, 2008, (AR 26- On November 19, 2008, the ALJ issued a decision denying (AR 14-25.) Plaintiff appealed the ALJ’s decision to the 9 (AR 1-5, 7-11.) She then III. ANALYSIS 10 A. The Credibility Determination 11 In her first claim of error, Plaintiff contends that the ALJ 12 erred by failing to provide specific, clear, and convincing reasons 13 for rejecting her testimony. 14 following reasons, the Court agrees. (Joint Stip. at 4-16.) For the 15 ALJs are tasked with judging the credibility of witnesses. 16 Where, as here, a claimant has produced objective medical evidence of 17 an impairment which could reasonably be expected to produce the 18 symptoms alleged and there is no evidence of malingering, the ALJ can 19 only reject the claimant’s testimony for specific, clear, and 20 convincing reasons. 21 1996). 22 account ordinary credibility evaluation techniques as well as the 23 claimant’s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. In making a credibility determination, the ALJ may take into Id. at 1284. 24 The essence of Plaintiff’s claims is that she is unable to work 25 due to various ailments, including “multiple sclerosis, back injury, 26 depression, macular degeneration [. . .], neck pain, double vision, 27 exhaustion, severe anger, confusion, numbness/tingling, paran[oia], 28 [. . . ], severe back pain, vision problems, reading problems, 2 1 communication problems, people problems[.]” (AR 116.) Plaintiff 2 complained that her conditions limited her ability to work because of: 3 Stress, heat, re[petitive] motions, reading, following 4 instructions, interaction with people, taking notes, phone 5 numbers, names, following directions, focus, filing, 6 concentration, learning new tasks [is] extrem[ely] difficult 7 for me, anything demanding causes extreme stress and 8 confusion. 9 to deal with. There are many other situations that I am unable Any stress is bad. No short term memory. 10 Easily confused . . .. 11 sleep. 12 suicidal thoughts. 13 hurts almost everyday, any time I try to do something the 14 repeating motion makes arms, hands and legs hurt. 15 frequent headaches. 16 17 The fatigue makes me just want to I need to rest often. The depression causes I don’t want to be left alone. My back I have (AR 116.) Plaintiff also claimed that the prescription drug Avonex, which 18 she took once a week for her multiple sclerosis, caused flu-like 19 symptoms, such as headaches, chills, drowsiness, and dizziness, 20 lasting 12 to 24 hours. 21 could not work because she forgets what she is doing and gets 22 distracted, and that she drops things, such as cups and plates, all 23 the time. 24 when she is tired and that “maybe once a year” she takes a course of 25 cortisone to alleviate double vision. 26 that she experienced numbness or tingling in her hands or arms several 27 times a week, and that her legs gave out, which caused her to use a 28 cane in 1998 and 1999. (AR 34-36.) (AR 33, 122, 156.) She testified that she Plaintiff claimed that she gets double vision (AR 58-59.) 3 (AR 51-52.) She also testified Finally, she claimed that she 1 gets headaches a couple of times a week, which require her to rest in 2 a dark room and take Ibuprofen. (AR 59-60.) 3 The ALJ rejected Plaintiff’s testimony on the grounds that: 4 1) Plaintiff’s thoughts “did not seem to wander” at the administrative 5 hearing and that “all questions were answered alertly and 6 appropriately”; 2) there was no evidence that Plaintiff was regularly 7 using strong pain medication that would significantly impair her 8 ability to do basic work activities; 3) there was no evidence of any 9 significant side effects from her medication; and 4) Plaintiff was 10 able to perform some light housework, despite her claims that she was 11 able to perform only very limited daily activities. 12 reasons explained below, the Court finds that these reasons do not 13 support the finding that Plaintiff was not credible. 14 (AR 24.) For the Plaintiff contends that the ALJ is guilty of “sit and squirm” 15 jurisprudence, in that she rested her finding that Plaintiff was not 16 credible on her observation of Plaintiff at the hearing. See 17 Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985). The Court 18 does not agree. 19 based on a claimant’s failure to exhibit alleged symptoms at an 20 administrative hearing, id., an ALJ may rely on what he observes at a 21 hearing that undermines a claimant’s alleged symptoms. 22 v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). 23 Plaintiff’s claims of mental impairment causing difficulty in, for 24 example, processing information, the ALJ observed that Plaintiff had 25 no difficulty in understanding the questions the ALJ asked and in 26 answering them. 27 Plaintiff’s credibility. Though it is improper for an ALJ to draw conclusions See Verduzco Here, despite The ALJ properly considered this factor in judging 28 4 1 The ALJ’s second reason for questioning Plaintiff’s credibility 2 was that there was no credible evidence that Plaintiff regularly used 3 strong pain medication that would significantly impair her ability to 4 do basic work activities. 5 be a convincing reason to reject Plaintiff’s testimony. 6 numerous complaints about her physical ailments ran the gamut from 7 “can’t hold things” to “can’t concentrate,” and touched upon many 8 things in the middle, so to speak, like “unable to handle stress” and 9 “fatigue.” (AR 24.) (AR 31-52, 116.) The Court does not find this to Plaintiff’s Though she did complain at times about 10 pain, pain was not the primary reason she claimed that she could not 11 work. 12 not being candid because there was no evidence that she regularly used 13 pain medication that impaired her ability to do work is not relevant 14 to Plaintiff’s complaints and does not amount to a convincing reason 15 to reject her testimony. 16 (AR 31-52, 116.) Thus, the ALJ’s conclusion that Plaintiff was The ALJ’s next reason for rejecting Plaintiff’s testimony was 17 that there were no significant side effects from her medication. (AR 18 24.) 19 finding. 20 sclerosis and experienced flu-like symptoms for 12 to 24 hours after 21 taking the medication. 22 these flu-like symptoms were not a significant side effect. 23 this conclusion, the Court still questions how this showed that 24 Plaintiff was not credible. 25 symptoms for 12 to 24 hours, the medical expert corroborated 26 Plaintiff’s testimony as to the symptoms and the length of time that 27 they lasted. 28 effects. Arguably, the record supports the underlying basis for this Plaintiff took Avonex every week to control her multiple (AR 56.) (AR 33.) Presumably, the ALJ concluded that Accepting As to the existence of the flu-like Thus, Plaintiff was not lying about the side How the lack of significant side effects from Plaintiff’s 5 1 medication helped to show that Plaintiff was untruthful is unclear. 2 There is no evidence that Plaintiff should have been taking some other 3 medication, or that she would have experienced less symptoms if she 4 did. 5 discount Plaintiff’s testimony is not convincing. 6 Thus, the Court concludes that this reason offered by the ALJ to Finally, the ALJ found that Plaintiff was not credible in her 7 claims that she could not work because she was able to perform “some 8 light housework.” 9 support the underlying factual conclusion, the Court is not convinced (AR 24.) Again, though there is some evidence to 10 that this shows that Plaintiff was not telling the truth. 11 testified, for example, that she walks her dog about three or four 12 times a week, drives occasionally, does a little housework, such as 13 wiping the counters or folding laundry, occasionally cooks, sometimes 14 uses a “Swifter” to sweep the floor, goes to Costco to shop about once 15 a week, and feeds the birds. 16 amount of activity does not seem to support the ALJ’s finding that 17 Plaintiff’s claims that she cannot work were not credible. 18 first place, Plaintiff’s testimony documents a very limited amount of 19 activity and does not establish that Plaintiff could sustain a 40- 20 hour-a-week job. 21 (holding that daily activities can be grounds for adverse credibility 22 finding only if claimant is able to “spend a substantial part of [her] 23 day engaged in pursuits involving the performance of physical 24 functions that are transferable to a work setting”) (quotation 25 omitted). 26 activities and still contends that she cannot work does not go to her 27 honesty, but, rather, her perception as to what she was capable of. 28 Though, objectively, Plaintiff’s testimony that she can perform some (AR 36, 42, 43, 44-46.) Plaintiff This minimal In the See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) Further, the fact that Plaintiff admits to performing these 6 1 household tasks might contradict her claim that she cannot work, it 2 does not establish that she is not telling the truth when she claims 3 that she cannot work. 4 of her capabilities is, arguably, faulty. 5 constitute a convincing reason to reject her testimony, either. 6 Rather, it shows that her subjective assessment Thus, this does not The Agency argues that the ALJ also relied on the fact that the 7 objective medical evidence did not support Plaintiff’s claims of 8 disabling pain and impairment. 9 summarizes that medical evidence and explains why the ALJ was right in (Joint Stip. at 16-17.) It then 10 relying on this basis. The ALJ’s decision, however, does not support 11 the Agency’s argument here. 12 medical records and set forth a summary of what the doctors found with 13 regard to Plaintiff’s ailments, the ALJ never claimed that she was 14 rejecting Plaintiff’s testimony because it was inconsistent with the 15 medical record. 16 discounting the testimony for “the reasons stated above” (AR 24), 17 which reasons the Court has set forth and discussed above. 18 next paragraph of her decision, the ALJ summarily concluded, “the 19 claimant’s statements concerning the intensity, persistence and 20 limiting effects of these symptoms are not credible to the extent they 21 are inconsistent with the above residual functional capacity 22 assessment.” 23 referring to when it argues that the ALJ rejected Plaintiff’s 24 testimony after “properly consider[ing] the objective medical 25 evidence” (Joint Stip. at 16), the Court concludes that this is not 26 specific enough to support an adverse credibility finding. 27 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882, 884-85 (9th Cir. 2006) 28 (rejecting ALJ’s finding that claimant is incredible based on fact (AR 20-24.) (AR 24.) Though the ALJ thoroughly reviewed the Instead, she explained that she was In the Assuming that this is what the Agency is 7 See 1 that testimony was “not consistent with or supported by the overall 2 medical evidence of record” because justification lacks meaningful 3 explanation and gives the court nothing with which to assess the ALJ’s 4 determination). 5 Ultimately, the Court finds that the ALJ cited four reasons for 6 rejecting Plaintiff’s credibility and the Court has concluded that 7 three of them are not clear and convincing. 8 i.e., the fact that Plaintiff did not have trouble responding to the 9 ALJ’s questions at the hearing–-is probably not enough to sustain the The remaining reason–- 10 ALJ’s credibility finding. More importantly, however, whether it is 11 enough is a matter for the ALJ to decide in the first instance. 12 she can determine whether she would have discounted Plaintiff’s 13 testimony for this reason alone. 14 remand, the ALJ will have a chance to reconsider the credibility 15 determination. 16 may consider any factors she finds relevant in determining 17 credibility. 18 B. 19 In her second claim of error, Plaintiff contends that the ALJ Only As a result, remand is required. On In doing so, she is not limited in her analysis and Plaintiff’s Mental Impairment 20 erred in determining at step two that she did not suffer from a severe 21 mental impairment. 22 reasons, the Court finds that this issue, too, should be re-evaluated 23 on remand. 24 (Joint Stip. at 22-26.) For the following At step two of the sequential evaluation process, the ALJ is 25 tasked with identifying a claimant’s “severe” impairments. 20 C.F.R. 26 § 404.1520(a)(4)(ii). 27 limits an individual's physical or mental ability to do basic work 28 activities. A severe impairment is one that significantly 20 C.F.R. § 404.1521(a). 8 The governing regulations 1 define “basic work activities” as “the abilities and aptitudes 2 necessary to do most jobs.” 3 Security Ruling (“SSR”) 85-28, a “determination that an impairment(s) 4 is not severe requires a careful evaluation of the medical findings 5 which describe the impairment(s) and an informed judgment about its 6 (their) limiting effects on the individual’s physical and mental 7 ability(ies) to perform basic work activities[.]” 8 subjective symptoms must be considered in this evaluation. 9 F.3d at 1290. 20 C.F.R. § 404.1521(b). Under Social A claimant’s Smolen, 80 The step-two inquiry is intended to be a “de minimis 10 screening device.” 11 (1987)). 12 Id. (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 The ALJ cited numerous reasons for concluding that Plaintiff’s 13 depression did not limit her ability to work. A fair reading of the 14 ALJ’s decision, however, points to the fact that this conclusion was 15 based in large measure on the fact that the ALJ found that Plaintiff 16 was not credible. 17 apparently treated Plaintiff from 2006 to 2008, reported that he had 18 diagnosed her with major depression and generalized anxiety disorder. 19 (AR 698.) 20 was clear that it was based, in large measure, on Plaintiff’s 21 recitation of her symptoms and treatment, which the ALJ did not 22 accept. 23 would not have rejected Dr. Kaufman’s opinion, at least not for this 24 reason. 25 conclude that Plaintiff’s depression was not a severe impairment. 26 remand, the ALJ should first re-consider the issue of Plaintiff’s For example, psychiatrist Edward Kaufman, who The ALJ rejected Dr. Kaufman’s opinion, however, because it (AR 24.) Had the ALJ accepted Plaintiff’s claims, she likely The same holds true for the other reasons cited by the ALJ to 27 28 9 On 1 credibility, and then determine whether her claimed psychiatric 2 impairments are severe.1 3 C. 4 In her prayer for relief, Plaintiff requests that the Court 5 remand the case to the Agency with instructions to order the immediate 6 payment of benefits. 7 explained below. 8 9 Remand is the Appropriate Remedy This the Court declines to do for the reasons The decision whether to reverse for an award of benefits or to remand for further proceedings is within the Court's discretion. 10 Harman v. Apfel, 211 F.3d 1172, 1177-1178 (9th Cir. 2000). 11 useful purpose would be served by further administrative proceedings, 12 or where the record has been fully developed, the Court can remand 13 with instructions to award benefits. 14 whether to remand for further proceedings turns upon the likely 15 utility of such proceedings."). 16 outstanding issues that must be resolved before a determination of 17 disability can be made and it is not clear from the record that 18 Plaintiff is entitled to benefits, remand for further proceedings is 19 appropriate. 20 1112, 1115-16 (9th Cir. 2003). Where no Id. at 1179 ("[T]he decision of Where, as here, however, there are Id. at 1180-81; see also Bunnell v. Barnhart, 336 F.3d 21 22 23 1 24 25 26 27 28 Dr. Kaufman’s 2006 evaluation is not in the record. Nor are any of his treatment notes. (He reports that he treated Plaintiff between November 2006 and March 2008. (AR 698.)) These records should be made part of the record so that the ALJ, and the Court, if necessary, can assess the extent of treatment Plaintiff received for her depression. So, too, should any additional treatment records from Plaintiff’s treating physician, who, Plaintiff claims, treated her depression from 1995 to 2006 with Prozac, Paxil, Lexapro, and Zoloft. (AR 698.) 10 1 Though the Court has called into question the ALJ’s credibility 2 finding, it has not concluded that Plaintiff was credible. 3 decision is for the ALJ in the first instance. 4 for the Court’s ruling on the step-two determination. 5 not concluded that Plaintiff’s depression is a severe impairment, it 6 has, instead, questioned the ALJ’s conclusion in this regard and sent 7 the issue back for further consideration. 8 is scant evidence regarding Plaintiff’s treatment for depression in 9 this record. What there is is confusing. That The same holds true The Court has The Court notes that there Plaintiff purports to have 10 been treated for depression from 1995 to 2008, but fails to include 11 treatment records relating to this treatment from her treating doctor 12 or a psychologist or psychiatrist. 13 included these records, it appears that the medication that she took 14 for her depression controlled her symptoms to some extent. 15 medication is effective in controlling a condition, it is reasonable 16 for the Agency to conclude that the condition is not disabling. 17 Montijo v. Sec’y of Health & Human Servs., 729 F.2d 599, 600-01 (9th 18 Cir. 1984) (affirming ALJ’s finding that Addison's Disease controlled 19 with medications was not disabling); Odle v. Heckler, 707 F.2d 439, 20 440 (9th Cir. 1983) (upholding ALJ’s conclusion that rib condition 21 that could be controlled with antibiotics not disabling). Even assuming that she had 22 23 24 25 26 27 28 11 Where See 1 2 3 IV. CONCLUSION For the foregoing reasons, the Agency’s decision is reversed and the case is remanded for further consideration.2 4 IT IS SO ORDERED. 5 DATED: September 9, 2010. 6 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 S:\PJW\Cases-Soc Sec\Gerber\Memo_Opinion.wpd 22 23 24 25 26 27 28 2 The Court notes that the ALJ failed to address the statements made by Plaintiff’s husband in the report he submitted in support of her application. (AR 126-33.) This, too, was error. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). The Court has not addressed the merits of this issue because Plaintiff elected not to raise it on appeal. Should the Agency again reject her claims, however, and should she raise the issue on appeal, the Court would be required to address it. The Court makes this observation in the interests of saving time should further review by the Court become necessary. 12
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