Steven A McMahon v. Michael J Astrue, No. 8:2010cv00475 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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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 STEVEN A. MCMAHON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. SACV 10-00475-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on April 16, 2010, seeking review of 19 the denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for a period of disability and disability 21 insurance benefits ( DIB ). On October 16, 2010, the parties consented, 22 pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United 23 States Magistrate Judge. 24 December 17, 2010, in which: 25 Commissioner s decision and remanding this case for the payment of 26 benefits or, alternatively, for further administrative proceedings; and 27 defendant requests that the Commissioner s decision be affirmed or, 28 alternatively, remanded for further administrative proceedings. The parties filed a Joint Stipulation on plaintiff seeks an order reversing the The 1 Court has taken the parties Joint Stipulation under submission without 2 oral argument. 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 Plaintiff filed an application for a period of disability and DIB. 7 (Administrative Record ( A.R. ) 136-38.) 8 disabled since January 1, 2003, due to blood clots, deep vein thrombosis 9 of the right leg, peripheral Plaintiff claims to have been neuropathy, spinal stenosis, five 10 desiccated discs and bone spurs of the lower back, colitis, panic 11 attacks, generalized anxiety, post-traumatic syndrome, and depression. 12 (A.R. 75, 147.) 13 preparer, operation analyst, and administrative assistant and/or clerk.1 14 (A.R. 18.) Plaintiff has past relevant work experience as a tax 15 16 After the Commissioner denied plaintiff s claim initially and upon 17 reconsideration (A.R. 12, 75-78), plaintiff requested a hearing 18 82). 19 represented by counsel, appeared and testified at a hearing before 20 Administrative Law Judge Keith Dietterle (the ALJ ). 21 73.) (A.R. On October 29, 2007, and September 22, 2008, plaintiff, who was (A.R. 23-40, 54- Vocational expert David A. Rinehart and medical expert Alanson A. 22 23 24 25 26 27 28 1 Although not discussed in the ALJ s decision, it appears that plaintiff also has past relevant work experience as a home attendant. (See, e.g., A.R. 37.) 2 1 Mason, M.D.2 also testified at the September 22, 2008 hearing.3 2 23-40.) On January 21, 2009, the ALJ denied plaintiff s claim (A.R. 12- 3 19), and the Appeals Council subsequently denied plaintiff s request for 4 review of the ALJ s decision (A.R. 1-3). 5 in this action (A.R. That decision is now at issue 6 7 SUMMARY OF ADMINISTRATIVE DECISION 8 9 The ALJ found that plaintiff has not engaged in substantial gainful 10 activity since January 1, 2003, the alleged onset date of plaintiff s 11 claimed disability. 12 last met the insured status requirements of the Social Security Act on 13 December 31, 2005. 14 severe impairment of back pain.4 15 plaintiff does not have an impairment or combination of impairments that 16 meets or medically equals in severity any impairment listed in 20 C.F.R. 17 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525 and 404.1526). 18 (A.R. 16.) (A.R. 14.) (Id.) The ALJ further found that plaintiff The ALJ determined that plaintiff has the (Id.) The ALJ also determined that 19 20 After reviewing the record, the ALJ determined that plaintiff has 21 the residual functional capacity ( RFC ) to perform the full range of 22 23 24 25 26 2 Dr. Mason has a medical specialty in orthopedic surgery. (A.R. 17, 379.) 3 In his decision, the ALJ stated that vocational expert Kelly Winn-Boaitey testified. (A.R. 12.) After carefully reviewing the transcripts from both hearings, however, the Court cannot find any evidence of such testimony. 27 4 28 The ALJ also determined that plaintiff s affective disorder is non-severe. (A.R. 14.) 3 impairment of 1 light work as defined in 20 CFR 404.1567(b). 2 ALJ found that: (Id.) Specifically, the 3 4 [Plaintiff] can occasionally lift and carry twenty pounds and 5 frequently lift and carry ten pounds. [Plaintiff] can stand 6 for a total of four hours in an eight-hour workday, walk for 7 a total of two hours in an eight-hour workday, and sit for a 8 total of six hours in an eight-hour workday. 9 occasionally climb stairs and ramps, balance, stoop, kneel, 10 and crouch. [Plaintiff] cannot reach overhead, bilaterally. 11 [Plaintiff] cannot perform operations of foot controls on the 12 right 13 climbing ladders or scaffolds. [Plaintiff] is also precluded 14 from working at unprotected heights and vibrations. side. [Plaintiff] is precluded [Plaintiff] can from crawling and 15 16 (Id.) 17 18 The ALJ concluded that plaintiff s past relevant work as a tax 19 preparer, operation analyst, and administrative assistant and/or clerk 20 does not require the performance of work-related activities precluded by 21 plaintiff s RFC. 22 plaintiff was not disabled within the meaning of the Social Security Act 23 from January 1, 2003, the alleged onset date, through December 31, 2005, 24 the date last insured. (A.R. 18.) Accordingly, the ALJ concluded that (A.R. 19.) 25 26 STANDARD OF REVIEW 27 28 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 1 decision to determine whether it is free from legal error and supported 2 by substantial evidence in the record as a whole. 3 F.3d 625, 630 (9th Cir. 2007). 4 evidence as a reasonable mind might accept as adequate to support a 5 conclusion. 6 a mere scintilla but not necessarily a preponderance. 7 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 8 record can constitute substantial evidence, only those reasonably drawn 9 from the record will suffice. 10 Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 11 12 Although this Court cannot substitute its discretion for that of 13 the Commissioner, the Court nonetheless must review the record as a 14 whole, weighing both the evidence that supports and the evidence that 15 detracts from the [Commissioner s] conclusion. 16 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 17 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 responsible for determining credibility, resolving conflicts in medical 19 testimony, and for resolving ambiguities. 20 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 21 22 The Court will uphold the Commissioner s decision when the evidence 23 is susceptible to more than one rational interpretation. 24 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 25 review only the reasons stated by the ALJ in his decision and may not 26 affirm the ALJ on a ground upon which he did not rely. 27 at 630; see also Connett, 340 F.3d at 874. 28 the Commissioner s decision if it is based on harmless error, which 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 exists only when it is clear from the record that an ALJ s error was 2 inconsequential to the ultimate nondisability determination. Robbins 3 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 4 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 5 at 679. 6 7 DISCUSSION 8 9 Plaintiff makes the following claims: (1) the ALJ failed to find 10 plaintiff s vascular insufficiency of the right leg to be a severe 11 impairment at step two; and (2) the ALJ did not properly assess 12 plaintiff s credibility. (Joint Stipulation ( Joint Stip. ) at 2.) 13 14 15 I. The ALJ s Failure To Consider Plaintiff s Vascular Insufficiency Of The Right Leg For Purposes Of Step Two Constitutes Error. 16 17 At step two of the sequential evaluation process, the ALJ is tasked 18 with identifying a claimant s severe impairments. 19 404.1520(a)(4)(ii), 404.1520(c). 20 significantly limits [a claimant s] physical or mental ability to do 21 basic work activities. 5 22 term severe, most circuits, including the Ninth Circuit, have held 20 C.F.R. §§ A severe impairment is one that 20 C.F.R. § 404.1520(c). Despite use of the 23 24 25 26 27 28 5 Basic work activities are the abilities and aptitudes necessary to do most jobs. 20 C.F.R. § 404.1521(b). Examples of such activities include: (1) physical functions such as walking, sitting, lifting, pushing, pulling, reaching, carrying or handling ; (2) the capacity for seeing, hearing, and speaking ; (3) understanding, carrying out, and remembering simple instructions ; (4) the use of judgment; (5) responding appropriately to supervision, co-workers and ususal work situations ; and (6) dealing with changes in routine work schedules. Id. 6 1 that the step two inquiry is a de minimus screening device to dispose 2 of groundless claims. 3 1996). 4 be 5 abnormality that has no more than a minimal effect on [a claimant s] 6 ability to work. 7 2005)(citation omitted); see Soc. Sec. Ruling 85-28, 1985 WL 56856, at 8 *3, 1985 SSR LEXIS 19, at *9 (stating that [a] claim may be denied at 9 step two only if . . . a finding [that the relevant impairments are not 10 medically severe] is clearly established by medical evidence )(emphasis 11 added). Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. Accordingly, [a]n impairment or combination of impairments may found not severe only if the evidence establishes a slight Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 12 13 At step two of the sequential evaluation process, the ALJ 14 determined that plaintiff s back pain is a severe impairment and his 15 affective disorder is a non-severe mental impairment. (A.R. 14.) The 16 ALJ 17 vascular insufficiency of the right leg constitutes a severe impairment. 18 Plaintiff contends that the ALJ s failure to find plaintiff s vascular 19 insufficiency of the right leg to be a severe impairment constitutes 20 error. made no determination, however, regarding whether plaintiff s (Joint. Stip. at 2-3.) 21 22 At the October 2007 administrative hearing, plaintiff testified 23 that he has had deep vein thrombosis of the right leg since December 24 2004. 25 disability period, he experienced six to eight bad days a month in 26 which he could not get out of bed due, in part, to pain in his right 27 leg. 28 ease the pain, he stated that his medication puts him to sleep, (A.R. 65.) (A.R. 70.) Plaintiff also testified that, during the relevant While plaintiff testified that he takes medication to 7 1 rendering him incapable of working.6 2 plaintiff s pain testimony, plaintiff s disability report and medical 3 records 4 plaintiff s right leg as well as difficulties sitting and standing for 5 more than 30 minutes at a time.7 6 more than 30 minutes); A.R. 238 (pain, tenderness, and swelling of the 7 right leg); A.R. 249 (continued numbness and weakness in the right 8 lower extremity ); A.R. 256 ( leg and foot weakness/numbness ).) contain reports of (A.R. 68.) weakness, numbness, In addition to and swelling in (See, e.g., A.R. 147 (cannot sit for 9 10 The medical evidence of record confirms that plaintiff suffers from 11 deep vein thrombosis of the right leg. 12 study of plaintiff s right leg, for example, shows findings consistent 13 with deep vein thrombosis, including: 14 veins of the right leg ; no sign of flow within the various structures 15 [of plaintiff s vessels] ; and noncompressible vessels.8 A January 5, 2006 Venous Doppler filing defects . . . in the deep (A.R. 238.) 16 17 18 19 20 21 22 23 24 25 6 Plaintiff testified that he takes Warfarin, an anticoagulant, to treat his deep vein thrombosis. (A.R. 65, 152.) He further testified that he wears compression stockings to prevent blood clots from traveling to his heart and causing a heart attack and/or stroke. (A.R. 68-69.) 7 It is unclear from the record what role, if any, plaintiff s back condition plays in plaintiff s right leg pain and functional limitations. At the hearing, plaintiff testified to experiencing pain which would radiate from his buttock down to . . . [his] right leg. (A.R. 64.) While plaintiff was originally told that he had sciatica, plaintiff testified that later testing showed something else [was] wrong with [him]. (Id.) Plaintiff did not specify, and the Court cannot determine, what this later testing showed. Notwithstanding this testimony, based on plaintiff s other testimony as well as the medical evidence of record, substantial evidence establishes that plaintiff s impairment of vascular insufficiency of the right leg would have more than a minimal effect on plaintiff s ability to work. 26 8 27 28 While the Venous Doppler study was performed one month after plaintiff s date last insured, the Ninth Circuit has stated that medical evaluations made after the expiration of a claimant s insured status are relevant to an evaluation of the pre-expiration condition. 8 1 In addition, in a February 28, 2008 Medical Source Statement regarding 2 plaintiff s ability to do work-related physical activities, medical 3 expert Dr. Mason notes that plaintiff has a history of deep vein 4 thrombosis (A.R. 376), which is supported by medical evidence in the 5 record (A.R. 381, 383). 6 7 Based on plaintiff s testimony, as well as medical evidence in the 8 record, substantial evidence regarding the vascular insufficiency in 9 plaintiff s right leg was presented to the ALJ. The Court finds that 10 plaintiff s impairment of vascular insufficiency of the right leg would 11 have more than a minimal effect on plaintiff s ability to perform basic 12 work activities. 13 vascular insufficiency of the right leg constitutes error. Accordingly, the ALJ s failure to address plaintiff s 14 15 Moreover, and contrary to defendant s contention, the ALJ s failure 16 to address plaintiff s vascular insufficiency cannot be deemed harmless. 17 In general, an ALJ s failure to discuss a claimant s impairment at step 18 two may be harmless only when the ALJ s error did not prejudice a 19 claimant at later steps in the sequential evaluation process. In Burch, 20 for example, the Ninth Circuit assumed, without deciding, that it was 21 legal error for the ALJ not to discuss plaintiff s obesity in his step 22 two analysis. 23 that the assumed error was harmless, because it would not have impacted 24 the ALJ s analysis at either step four or five of the evaluation 400 F.3d at 682. The Ninth Circuit concluded, however, 25 26 27 28 Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988); see also Turner v. Comm r of Soc. Sec., 613 F.3d 1217, 1228-29 (9th Cir. 2010)(noting that [w]hile the ALJ must consider only impairments (and limitations and restriction therefrom) that [plaintiff] had prior to the [date last insured], evidence post-dating the [date last insured] is probative of plaintiff s pre-[date last insured] disability ). 9 1 process. 2 step four, plaintiff failed to point to any evidence of functional 3 limitations due to her obesity that would have impacted the ALJ s 4 analysis. 5 that no prejudice occurred, because the ALJ adequately considered 6 [plaintiff s] obesity in his RFC determination - i.e., there were no 7 functional limitations as a result of [plaintiff s] obesity that the 8 ALJ failed to consider. 9 909, 911 (9th Cir. 2007)(finding that any error the ALJ committed in 10 failing to list plaintiff s bursitis at step 2 was harmless, because the 11 ALJ extensively discussed plaintiff s bursitis and considered any 12 limitations posed by the bursitis at [s]tep 4 ). Specifically, the Ninth Circuit found that, for purposes of Id. at 683. Further, at step five, the Ninth Circuit found Id. at 684; see also Lewis v. Astrue, 498 F.3d 13 14 In this case, unlike in Burch and Lewis, the Court cannot conclude 15 that the ALJ s failure to consider plaintiff s vascular insufficiency of 16 the right leg is harmless error. 17 restriction in his RFC assessment that plaintiff not operate foot 18 controls with his right leg, there is no indication that the ALJ 19 properly considered plaintiff s vascular insufficiency of the right leg 20 or plaintiff s alleged attendant functional limitations and pain. 21 discussed 22 restrictions in his right leg during the disability period at issue - 23 including, inter alia, pain and swelling in his right leg; difficulties 24 sitting or standing for more than 30 minutes at a time; and 6-8 bad 25 days a month in which he could not get out of bed due, in part, to pain 26 in his right leg. 27 alleged functional restrictions exceed those found by the ALJ and, thus, 28 could have impacted the ALJ s RFC assessment. above, plaintiff In pertinent part, except for a has alleged significant As functional Contrary to defendant s contention, plaintiff s 10 1 Further, as discussed infra, the ALJ has not provided clear and 2 convincing 3 restrictions and pain in his right leg. 4 cannot conclude that plaintiff was not prejudiced at a later step in the 5 sequential evaluation process, the Court cannot find the ALJ s error to 6 be harmless. 7 harmless when it was nonprejudicial to the claimant or irrelevant to 8 the ALJ s ultimate disability conclusion ). reasons for rejecting plaintiff s alleged functional Accordingly, because the Court See Stout, 454 F.3d at 1055 (finding an error to be 9 10 11 II. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff s Testimony To Be Not Credible. 12 13 Once a disability claimant produces objective evidence of an 14 underlying impairment that is reasonably likely to be the source of his 15 subjective symptom(s), all subjective testimony as to the severity of 16 the symptoms must be considered. 17 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 18 1991)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining how pain 19 and other symptoms are evaluated). 20 malingering based on affirmative evidence thereof, he or she may only 21 find an applicant not credible by making specific findings as to 22 credibility 23 Robbins, 466 F.3d at 883. 24 claimant s credibility include: 25 truthfulness; (2) inconsistencies either in the claimant s testimony or 26 between the claimant s testimony and his conduct; (3) the claimant s 27 daily activities; (4) the claimant s work record; and (5) testimony from 28 physicians and third parties concerning the nature, severity, and effect and stating clear Moisa v. Barnhart, 367 F.3d 882, 885 [U]nless an ALJ makes a finding of and convincing reasons for each. The factors to be considered in weighing a (1) the claimant s reputation for 11 1 of the symptoms of which the claimant complains. 2 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. 3 § 404.1529(c). See Thomas v. 4 5 The ALJ found that plaintiff s medically determinable impairments 6 could reasonably be expected to cause the alleged symptoms. (A.R. 18.) 7 Further, 8 Accordingly, the ALJ s reason for rejecting plaintiff s credibility must 9 be clear and convincing. the ALJ cited no evidence of malingering by plaintiff. 10 11 In his decision, the ALJ stated that plaintiff s statements 12 concerning the intensity, persistence and limiting effects of [his] 13 symptoms are not credible to the extent they are inconsistent with the 14 [RFC] assessment. (A.R. 18.) Specifically, the ALJ found plaintiff to 15 be 16 combination are managed by generally conservative and routine care which 17 includes medications and periodic office visits ; and (2) the objective 18 medical evidence does not corroborate plaintiff s subjective symptoms. 19 (Id.) not credible because: (1) plaintiff s medical problems in 20 21 The ALJ s first ground for finding plaintiff to be not credible is 22 neither clear nor convincing. 23 plaintiff s medical conditions do not appear to be managed by his 24 medications and periodic office visits. 25 above, plaintiff testified that, during the disability period at issue, 26 he experienced six to eight bad days a month, in which he could not 27 get out of bed due to pain in his back and leg. 28 plaintiff testified that he was able to ease his pain by lying down and Contrary to the ALJ s contention, 12 For example, as discussed (A.R. 70) Although 1 taking his pain medication, plaintiff also testified that his pain 2 medication puts him to sleep, rendering him incapable of working. 3 (A.R. 66, 68.) 4 formulating plaintiff s RFC (A.R. 17), testified that he would expect a 5 person with plaintiff s medical conditions to have fair and poor 6 days, but not a lot of good days (A.R. 31). 7 that it would be medically reasonable for a person with plaintiff s 8 condition to be suffering from plaintiff s alleged symptoms. 9 31-32.) Accordingly, given plaintiff s testimony and that of Dr. Mason, 10 the 11 Indeed, Dr. Mason, upon whose opinion the ALJ relied in Dr. Mason also agreed (A.R. convincing.9 ALJ s reason for discrediting plaintiff is neither clear nor 12 13 The ALJ s second ground for finding plaintiff to be not credible is 14 equally unavailing. 15 second ground, the ALJ noted that Dr. Mason s physical examination of 16 plaintiff failed to produce any significant objective findings. 10 17 (A.R. 18.) The To support his adverse credibility finding on the ALJ also noted that there was no musculoskeletal 18 19 20 21 22 23 24 25 26 27 28 9 Even assuming arguendo that plaintiff s condition could be deemed to be managed by medications and routine office visits, there is no indication that the ALJ considered the alleged side effects of plaintiff s medications in the disability evaluation, as required. See Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993)(noting that an ALJ must consider all factors, including the side effects of medications, that might have a significant impact on an individual s ability to work )(citation omitted); see also Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2-*3, 1996 SSR LEXIS 4, at *7-*8 (noting that type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms should be considered in the disability evaluation); 20 C.F.R. § 404.1529(c)(3)(iv). This constitutes error. 10 Contrary to the ALJ s statement, it does not appear that Dr. Mason actually physically examined plaintiff. Rather, the record indicates that Dr. Mason completed a Medical Source Statement after having reviewed exhibits selected for inclusion in the record of this case. (A.R. 373, 385.) 13 1 examination more recent than January 2003" and [a]side from an x-ray 2 report in 2002, . . . there [were] no imaging and/or x-ray reports, 3 which showed any significant problems. 4 stated that: (Id.) In addition, the ALJ 5 6 there was no objective evidence of atrophy in the extremities, 7 persistent neurological deficits (i.e., reflex, motor or 8 sensory 9 redness, swelling, etc); there was no neuropathic pain, which 10 could be carried over a long period; and there was no evidence 11 of nerve irritations. 12 this impairment would last for a continuous period of at least 13 12 14 limitations 15 continuous period of at least 12 months. loss), months. or persistent Finally than [the inflammatory signs (heat, Also, there are no indications that no physician ALJ] finds has with opined respect greater to any 16 17 (Id.) 18 19 With respect to the ALJ s contention that, aside from the x-ray 20 report in 2002, there are no imaging and/or x-ray reports that show any 21 significant 22 summarize the content of plaintiff s medical records. 23 Chater, 157 F.3d 715, 723 (9th Cir. 1998)(reversing and remanding case, 24 because ALJ s characterization of the record was not entirely accurate 25 regarding the content or tone ); see also Gallant v. Heckler, 753 F.2d 26 1450, 1456 (9th Cir. 1984)(holding that it was error for an ALJ to 27 ignore or misstate competent evidence in the record to justify his 28 conclusion). problems, the ALJ appears to ignore or inaccurately See Reddick v. Contrary to the ALJ s contention, the record contains 14 1 imaging that appears to show that plaintiff has significant medical 2 problems. 3 example, revealed that plaintiff has: 4 moderate degree of central cervical stenosis, and blunting of the right 5 nerve root sleeve at the C4-5 location; (2) degenerative disc disease 6 and moderately severe central cervical stenosis with impingement on the 7 cervical cord at the C5-6 location; and (3) marked degenerative disc 8 disease, 9 degenerative bony encroachment on the lateral recesses and neural 10 foramina bilaterally, marked truncation of the right side nerve root 11 sleeve, and an attenuated left side nerve root sleeve at the C6-7 12 location.11 13 performed on January 5, 2006, revealed that plaintiff has a filing 14 defect in multiple deep veins in his right leg that is consistent with 15 deep vein thrombosis. 16 insignificant, and thus, the ALJ s conclusion, based upon his improper 17 summarization of plaintiff s medical records, cannot constitute a clear 18 or convincing reason for finding plaintiff to be not credible. A January 23, 2003 CT scan of plaintiff s cervical spine, for severe cervical (A.R. stenosis 214-15.) In (1) degenerative disc disease, a with cord addition, a compression, Venous Doppler marked study (A.R. 238) Clearly these imaging reports are not 19 20 Further, the ALJ s observation that plaintiff does not have any 21 objective 22 persistent inflammatory signs, neuropathic pain, or nerve irritations is 23 unpersuasive. 24 testimony, and the ALJ has not specifically identified any evidence, to evidence of atrophy, persistent neurological deficits, Significantly, the record is devoid of any medical 25 26 11 27 28 In addition, it appears that the ALJ ignored plaintiff s March 25, 2002 MRI of the lumbar spine which revealed spinal stenosis and foraminal narrowing . . . , with the greatest narrowing at [the] L-3 and L5-S1 [locations]. (A.R. 286-87.) 15 1 support his observation.12 2 929, 2007 WL 2693679 *1 (9th Cir. Sept. 10, 2007)(finding the ALJ s 3 credibility determination unsupported by substantial evidence, in part, 4 because there was no medical testimony to support ALJ s determination 5 that plaintiff lacked muscular atrophy); see also Morgan v. Comm r of 6 Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (noting that, when 7 making 8 identify what testimony is credible and what testimony undermines the 9 claimant s complaints ). a credibility See Valenzuela v. Astrue, 247 Fed Appx. 927, determination, [t]he ALJ must specifically Thus, at present, the ALJ s observation is 10 unavailing, because it constitutes a medical opinion that the ALJ is not 11 qualified to make. 12 2010 U.S. Dist. LEXIS 1420, at *12 (C.D. Cal. January 7, 2010).13 See, e.g., Ananais v. Astrue, 2010 WL 129676, at *4, 13 14 The ALJ s last two reasons for discrediting plaintiff are also 15 unavailing. 16 that there are no indications that this impairment would last for a 17 continuous period of at least 12 months. 18 reference to this impairment is entirely unclear, and therefore, 19 without further specificity, this reason cannot constitute a clear or First, the ALJ attempts to discredit plaintiff by stating (A.R. 18.) The ALJ s 20 12 21 22 23 Indeed, the ALJ noted that plaintiff has not had any musculoskeletal examination since January 2003. (A.R. 18.) Accordingly, it is unclear upon what medical evidence, if any, the ALJ relied in determining that plaintiff does not have atrophy in his extremities. 13 24 25 26 27 28 Moreover, plaintiff s medical record contains evidence of neurological deficits (i.e., sensory loss), inflammatory signs, and nerve irritations. By way of example, plaintiff s CT scan of the lumbar spine shows blunting of the C4-5 nerve root, impingement of the cervical cord at the C5-6 location, cord compression at the C6-7 location, and a truncated right side and attenuated left side nerve root sleeve at the C6-7 location. (A.R. 214-15; see also A.R. 250 (polyneuropathy bilaterally).) Additionally, as noted supra, plaintiff s medical record and testimony indicate that plaintiff has weakness, numbness, and swelling in his right leg. 16 1 convincing reason for discrediting plaintiff. Second, to the extent the 2 ALJ attempts to discredit plaintiff because no physician has opined 3 greater limitations than found by the ALJ, the ALJ s reasoning is 4 unpersuasive. 5 ALJ relied in assessing plaintiff s RFC, is the only physician to assess 6 plaintiff s limitations specifically. 7 September 23, 2009, plaintiff s treating physician, Arun Budhraja, M.D. 8 noted, inter alia, that plaintiff s pain continues to worsen and that, 9 if plaintiff sits or stands for more than 30 minutes, he experiences 10 extreme pain whereupon he needs to take pain medication and lie flat 11 for two hours to reduce the pressure on his neck and back. 12 These limitations, as noted by plaintiff s treating physician, clearly 13 exceed those identified by the ALJ in plaintiff s RFC. Significantly, it appear that Dr. Mason, upon whom the However, in a letter dated (A.R. 397.) 14 15 Moreover, and significantly, the ALJ s above reasoning is 16 unconvincing, because the failure of the medical record to corroborate 17 fully plaintiff s subjective symptom testimony is not, by itself, a 18 legally sufficient basis for rejecting such testimony. 19 Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Bunnell, 947 F.2d at 347 20 (noting that [i]f an adjudicator could reject a claim of disability 21 simply because [plaintiff] fails to produce evidence supporting the 22 severity of the pain there would be no reason for an adjudicator to 23 consider anything other than medical findings ). Accordingly, the ALJ s 24 finding that the objective evidence does not support the extent of 25 plaintiff s physical complaints cannot, by itself, constitute a clear 26 and convincing reason for discrediting plaintiff s testimony. 27 Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988); Cotten v. Bowen, 28 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch, 400 F.3d at 681. 17 Rollins v. See 1 Accordingly, for the aforementioned reasons, the ALJ failed to give 2 clear and convincing reasons, as required, for discrediting plaintiff. 3 4 III. Remand Is Required. 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 9 useful purpose would be served by further administrative proceedings, or 10 where the record has been fully developed, it is appropriate to exercise 11 this discretion to direct an immediate award of benefits. 12 ( [T]he decision of whether to remand for further proceedings turns upon 13 the likely utility of such proceedings. ). 14 outstanding issues that must be resolved before a determination of 15 disability can be made, and it is not clear from the record that the ALJ 16 would be required to find the claimant disabled if all the evidence were 17 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 18 19 Remand is the appropriate remedy to allow the ALJ the opportunity 20 to remedy the above-mentioned deficiencies and errors. 21 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 22 further proceedings is appropriate if enhancement of the record would be 23 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 24 (remand appropriate to remedy defects in the record). See, e.g., 25 26 On remand, the ALJ must correct the above-mentioned deficiencies 27 and errors. 28 RFC, in which case, additional testimony from a vocational expert likely After so doing, the ALJ may need to reassess plaintiff s 18 1 will be needed to determine what work, if any, plaintiff can perform. 2 3 CONCLUSION 4 5 Accordingly, for the reasons stated above, IT IS ORDERED that the 6 decision of the Commissioner is REVERSED, and this case is REMANDED for 7 further proceedings consistent with this Memorandum Opinion and Order. 8 9 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 10 copies of this Memorandum Opinion and Order and the Judgment on counsel 11 for plaintiff and for defendant. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: June 6, 2011 16 17 18 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 19
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