Jeanette Ramirez v. Michael J Astrue, No. 8:2012cv00698 - Document 13 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons stated below, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion. (See document for details.) (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 SOUTHERN DIVISION 8 9 JEANETTE RAMIREZ, Plaintiff, 10 v. 11 12 13 ) ) ) ) ) ) ) MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Case No. SACV 12-00698-MLG MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) 14 Defendant. 15 16 17 Plaintiff Jeanette Ramirez seeks judicial review of the 18 Commissioner s final decision denying her applications for disability 19 insurance benefits ( DIB ) and Supplemental Security Income ( SSI ) 20 benefits. For the reasons stated below, the decision of the Commissioner 21 is 22 consistent with this opinion. reversed, and the matter is remanded for further proceedings 23 24 I. Background 25 Plaintiff was born on October 16, 1950, and was 58 years old at the 26 time she filed her applications for benefits. (Administrative Record 27 ( AR ) at 101.) She has a high school education and has relevant work 28 experience as a bank teller and legal secretary. (AR at 116, 121.) 1 1 Plaintiff filed her benefits applications on November 26, 2008, alleging 2 disability beginning July 1, 2003, due to kidney disease, high blood 3 pressure, fatigue, and depression. (AR at 21, 57.) 4 Plaintiff s applications were denied on March 27, 2009. (AR at 57- 5 61.) An administrative hearing was held on October 25, 2010, before 6 Administrative Law Judge ( ALJ ) John Kays. Plaintiff, represented by 7 counsel, testified, as did medical expert Dr. Sami Nafoosi, and a 8 vocational expert. (AR at 35-55.) On January 7, 2011, the ALJ issued an 9 unfavorable decision. (AR at 21-28.) He found that the medical evidence 10 established 11 impairments: chronic obstructive pulmonary disease, peripheral vascular 12 disease, hypertension, diverticulosis, and neurodermatitis. (Id.) The 13 ALJ determined that Plaintiff s impairments did not meet, or were not 14 medically equal to, one of the listed impairments in 20 C.F.R., Part 15 404, Subpart P, Appendix 1. (Id.) The ALJ further found that Plaintiff 16 retained the residual functional capacity ( RFC ) to perform light work 17 as defined in 20 C.F.R. 404.1567(b) with the following exceptions: 18 stand and walk for thirty minutes at a time for a maximum of four hours 19 in an eight-hour workday, and avoid exposure to dust, fumes, gases, air 20 pollutants, and extreme temperatures. (AR at 24.) In doing so, he found 21 that Plaintiff s testimony regarding her limitations was not fully 22 credible. (AR at 32.) The ALJ concluded that Plaintiff was capable of 23 performing her past relevant work as a legal secretary and was therefore 24 not disabled within the meaning of the Social Security Act. See 20 25 C.F.R. § 416.920(f). (AR at 27-28.) that Plaintiff suffered from the following severe 26 On February 22, 2012, the Appeals Council denied review. (AR at 1- 27 5.) Plaintiff then timely commenced this action for judicial review. On 28 October 2, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 2 1 of disputed facts and issues. Plaintiff contends that the ALJ erred by: 2 (1) failing to perform a proper credibility analysis; (2) improperly 3 relying on the testimony of the medical expert, Dr. Sami Nafoosi, M.D.; 4 and (3) failing to properly consider the medical evidence in the record. 5 (Joint Stip. at 4.) Plaintiff seeks reversal of the Commissioner s 6 denial 7 alternative, remand for a new administrative hearing. (Joint Stip. at 8 26.) The Commissioner requests that the ALJ s decision be affirmed. 9 (Joint Stip. at 28.) of her applications and payment of benefits or, in the 10 After reviewing the parties contentions and the record as a whole, 11 the Court finds Plaintiff s contention regarding the ALJ s failure to 12 properly evaluate Plaintiff s credibility to be meritorious and remands 13 this matter for further proceedings consistent with this opinion.1 14 15 16 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 17 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 18 decision must be upheld unless the ALJ s findings are based on legal 19 error or are not supported by substantial evidence in the record as a 20 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 21 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 22 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 23 such evidence as a reasonable person might accept as adequate to support 24 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 25 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 26 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 27 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 28 1 The Court does not reach the remaining claims of error and will not decide whether these issues would independently warrant relief. The ALJ may wish to consider these other claims of error upon remand. 3 1 evidence supports a finding, the reviewing court must review the 2 administrative record as a whole, weighing both the evidence that 3 supports 4 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 5 the evidence can support either affirming or reversing the ALJ s 6 conclusion, the reviewing court may not substitute its judgment for 7 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 8 9 III. Discussion 10 Plaintiff contends that the ALJ erred by failing to provide clear 11 and convincing reasons for rejecting her subjective symptom testimony. 12 (Joint Stip. at 5.) To determine whether a claimant s testimony about 13 subjective pain or symptoms is credible, an ALJ must engage in a two- 14 step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 15 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 16 First, the ALJ must determine whether the claimant has presented 17 objective medical evidence of an underlying impairment which could 18 reasonably be expected to produce the alleged pain or other symptoms. 19 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces objective 20 medical evidence of an underlying impairment, an adjudicator may not 21 reject a claimant s subjective complaints based solely on a lack of 22 objective medical evidence to fully corroborate the alleged severity of 23 pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 24 To the extent that an individual s claims of functional limitations and 25 restrictions due to alleged pain is reasonably consistent with the 26 objective 27 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 medical evidence and other 28 4 evidence in the case, the 1 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).2 2 Unless there is affirmative evidence showing that the claimant is 3 malingering, the ALJ must provide specific, clear and convincing reasons 4 for discrediting a claimant s complaints. Robbins, 466 F.3d at 883. 5 General findings are insufficient; rather, the ALJ must identify what 6 testimony is not credible and what evidence undermines the claimant s 7 complaints. Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 8 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant s work 9 record, observations of medical providers and third parties with 10 knowledge of claimant s limitations, aggravating factors, 11 restrictions 12 claimant s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & 13 n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to 14 seek treatment or follow a prescribed course of treatment and employ 15 other ordinary techniques of credibility evaluation. Id. (citations 16 omitted). 17 caused Plaintiff by claims symptoms, to suffer effects from the of functional medication, following and symptoms the and 18 functional limitations: she has frequent panic attacks during which she 19 becomes dizzy and finds it difficult to breathe, for which she has been 20 prescribed Xanax; she feels depressed and unable to cope; she is unable 21 to walk for more than 10 minutes due to pain; she can walk no more than 22 one block before needing to stop and rest due to pain and shortness of 23 breath; and she suffers from kidney disease, high blood pressure and 24 fatigue. (AR at 50-52, 115, 143-80.) 25 26 27 28 2 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 5 1 The ALJ found that Plaintiff s medical impairments could reasonably 2 be expected to produce the alleged symptoms. (AR at 25.) He was 3 therefore required to provide specific, clear and convincing reasons for 4 rejecting Plaintiff s subjective allegations of pain and functional 5 limitations. 6 Plaintiff s testimony not fully credible: The ALJ provided the following reasons for finding 7 Although the record shows that the claimant suffers from a 8 number of impairments, I find that the claimant s credibility 9 regarding the alleged severity of her symptoms and resulting 10 limitations is diminished by her refusal to quit smoking and 11 alcohol use. Dr. Hawkins and Dr. Ho diagnosed the claimant 12 with 13 recommended that the claimant quit smoking, as it poses as a 14 risk factor for chronic kidney disease. Although Dr. Weil, the 15 vascular surgeon, also strongly recommended smoking cessation, 16 the claimant had not quit smoking as of September 2008, and 17 Dr. Ho reported in his most recent treatment note of March 18 2010 that the claimant s smoking remains a main issue and he 19 would continue to encourage cessation. Additionally, despite 20 the claimant s allegations that she suffered from disabling 21 depression, the record shows that the claimant reported that 22 she drank wine socially. I note that alcohol is a well-known 23 depressant, and drinking alcohol on even a social basis may 24 exacerbate the claimant s depressive symptoms. 25 tobacco use disorder on numerous occasions and (AR at 32.) (Internal citations omitted.) 26 With respect smoking cessation, the ALJ failed to make adequate 27 underlying findings as required by Bunnell, 947 F.2d at 345. An ALJ may 28 consider a claimant s continued smoking in evaluating her credibility 6 1 with respect to the limitations of an impairment directly caused by 2 smoking. Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009); but 3 see Shramek v. Apfel, 226 F.3d 809, 812-13 (7th Cir. 2000) (noting, in 4 dicta, that nicotine s addictive properties made it extremely tenuous 5 to discredit a claimant s description of her impairments based on the 6 claimant s continued smoking). However, before basing a denial of 7 benefits on noncompliance, the ALJ must examine the medical conditions 8 and personal factors that bear on whether [a claimant] can reasonably 9 remedy her impairment and must make specific findings. Byrnes v. 10 Shalala, 60 F.3d 639, 641 (9th Cir. 1995) (citing Dodrill v. Shalala, 12 11 F.3d 12 establishing by substantial evidence that the claimant s impairment is 13 reasonably remediable by the particular individual involved, given ... 14 her social or psychological situation, and that [she] lacks good cause 15 for failing to follow a prescribed treatment program. Byrnes, 60 F.3d 16 at 641 (citing Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985)). 17 Also [e]ssential to a denial of benefits ... is a finding that if the 18 claimant followed her prescribed treatment she could return to work. 19 Id. (citing Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985)). 915, 919 (9th Cir. 1993)). The ALJ must develop a record 20 Here, the ALJ failed to make adequate findings regarding whether 21 Plaintiff was in fact not complying with a prescribed treatment program 22 to quit smoking, that she lacked good cause for failing to comply, or 23 that if she stopped smoking she could return to work. The ALJ did not 24 ask Plaintiff any questions at the administrative hearing regarding her 25 smoking, such as whether she had quit or was making a serious effort to 26 do so. Although there is a notation in the record in September 2006 that 27 Plaintiff was currently not too motivated to quit smoking, the other 28 medical records cited by the ALJ indicate that Plaintiff at least had 7 1 expressed interest in quitting smoking and was discussing with her 2 physicians various cessation aids, such as Nicoderm, Chantix, Zyban, and 3 even possibly hypnosis. (See, e.g., AR at 299, 341, 612, 665.) Nor is it 4 clear from the record whether any or all of Plaintiff s subjective 5 complaints of pain and functional limitations are related to her 6 smoking. See Kral v. Astrue, 2011 WL 4383111, *7 (E.D.Cal. 2011) 7 (finding 8 impairments were related to smoking, the ALJ s general reliance on the 9 claimant s 10 that where smoking only as a some reason of to the claimant s discredit her complaints credibility and was insufficient). 11 The other reason the ALJ relied on for finding Plaintiff less than 12 credible, her use of alcohol, is also unsupported by substantial 13 evidence in the record. The ALJ chides Plaintiff for social drinking 14 because alcohol is a well-known depressant, yet the ALJ found that 15 Plaintiff s depression was non-severe. (AR at 23, 26.) Moreover, it is 16 entirely unclear from the record how often or how much Plaintiff drinks. 17 The notations in the medical record upon which the ALJ relies merely 18 state alcohol: socially, wine. There does not appear to be any 19 indication in the record that Plaintiff s doctors believed that she had 20 a drinking problem or that alcohol consumption contributed in any way to 21 her impairments. Nor did the ALJ question Plaintiff regarding her 22 alcohol consumption. Thus, the mere fact that Plaintiff occasionally 23 drinks wine in social settings does not provide a reason supported by 24 substantial evidence in the record for discrediting her testimony. 25 In support of the argument that the ALJ properly addressed 26 Plaintiff s subjective complaints, the Commissioner points to other 27 evidence 28 credibility. in the record which allegedly undermines Plaintiff s First, the Commissioner argues that the ALJ noted that 8 1 the objective medical evidence did not support the degree of disability 2 alleged by Plaintiff. (Joint Stip. at 13, citing AR at 25-27.) An ALJ s 3 finding that there is no objective medical evidence corroborating 4 Plaintiff s subjective pain testimony is not, without more, a sufficient 5 reason for discrediting Plaintiff. See Burch v. Barnhart, 400 F.3d 676, 6 681 (9th Cir. 2005) (noting that lack of medical evidence cannot form 7 the sole basis for discounting pain testimony ). Although the medical 8 evidence is a relevant factor in determining the severity of the 9 claimant s pain and its disabling effects, once a claimant produces 10 objective medical evidence of an underlying impairment, an ALJ may not 11 reject a claimant s subjective complaints based solely on lack of 12 objective medical evidence to fully corroborate the alleged severity of 13 pain. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). 14 The Commissioner also contends that the ALJ relied upon Plaintiff s 15 conservative treatment regimen in support of his adverse credibility 16 determination. (Joint Stip. at 14, citing AR at 17.) The Court notes 17 that the page cited by the Commissioner in support of this contention is 18 not actually part of the ALJ s written opinion. Nevertheless, although 19 a conservative course of treatment may be a reason to discredit a 20 claimant s allegations of severe pain, see Parra v. Astrue, 481 F.3d 21 742, 750-51 (9th Cir. 2007), the ALJ did not clearly and explicitly cite 22 this as a reason for rejecting Plaintiff s testimony. It would be error 23 for this Court to affirm the ALJ s decision based upon reasons that the 24 ALJ did not discuss. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 25 2003). 26 The Commissioner also contends that the ALJ observed that 27 Plaintiff s subjective pain complaints and her statements concerning her 28 daily activities were not consistent. (Joint Stip. at 14, citing AR at 9 1 25.) Again, although this may be an acceptable reason for discounting a 2 claimant s credibility, the ALJ did not specifically note Plaintiff s 3 activities of daily living as a reason for his adverse credibility 4 determination. See Connett, 340 F.3d at 874. Accordingly, the Court 5 cannot affirm the ALJ s decision based upon the reasons proposed post 6 hoc by the Commissioner.3 7 In sum, the reasons given by the ALJ were not supported by 8 substantial evidence in the record and were therefore insufficient to 9 reject 10 Plaintiff s testimony regarding her symptoms and related limitations. 11 12 IV. Conclusion 13 The decision whether to remand for further proceedings is within 14 this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 15 Cir. 16 administrative 17 developed, it is appropriate to exercise this discretion to direct an 18 immediate award of benefits. Id. at 1179 ( [T]he decision of whether to 19 remand for further proceedings turns upon the likely utility of such 20 proceedings. ); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 21 However, where there are outstanding issues that must be resolved before 22 a determination of disability can be made, and it is not clear from the 23 record that the ALJ would be required to find the claimant disabled if 24 all 2000). the Where no useful proceedings, evidence were purpose or properly where would the evaluated, be served record remand has is by been further fully appropriate. 25 26 3 27 28 The Court notes that the Commissioner fails to address the sufficiency of the two reasons actually proffered by the ALJ, that is, that Plaintiff did not quit smoking and that she drank alcohol on social occasions. 10 1 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also 2 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remanding case 3 for reconsideration of credibility determination). 4 Here, the ALJ failed to explain with sufficient specificity the 5 basis for her determination that Plaintiff was not fully credible 6 regarding the intensity, persistence, and limiting effects of her 7 symptoms. Accordingly, the case is remanded for further proceedings 8 consistent with this opinion and order. 9 10 DATED: October 25, 2012 11 12 13 ______________________________ Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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