Michael v. Commissioner Social Security Administration
Filing
18
Findings & Recommendation: The Commissioner's decision should be reversed and remanded for further proceedings pursuant to sentence four of 42 U.S.C. §405(g). Objections to the Findings and Recommendation are due by 1/4/2010. Signed on 12/15/09 by Magistrate Judge Thomas M. Coffin. (lae)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAMELA MICHAEL,
Plaintiff, v. Commissioner of Social Security, Defendant. COFFIN, Magistrate Judge:
BACKGROUND
FINDINGS AND RECOMMENDATION
Plaintiff brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for supplemental security income and disability benefits. The court has jurisdiction under 42 U.S.C.
§
405(g).
Plaintiff was born in 1957.
She completed high school, one
year of college, and three years of training at a vocational institute. She has past relevant experience as an office worker Plaintiff alleges disability based primarily
and tax preparer. on back
,
neck and hand pain, epilepsy and depression.
1 - FINDINGS AND RECOMMENDATION
Defendant Commissioner contends that the denial of benefits was appropriate. Plaintiff seeks a reversal and awarding of benefits. In the alternative, plaintiff seeks a remand for
further proceedings. plaintiff, the
Although the former is preferred by
latter is more appropriate in the circumstances District Court should exercise its Such is discussed in
of this case and the
discretion in favor of further proceedings. more detail below.
STANDARD OF REVIEW
The initial burden of proof rests on the claimant to
establish disability. Cir. 1995). Roberts v. Shalala, 66 F.3d 179, 182 ( g t h
To meet this burden, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected
...
to last for a continuous
period of not less than 12 months."
42 U.S.C. S 4 2 3 ( d ) ( l ) ( A ) .
The Commissioner bears the burden of developing the record. Cir. l99l). DeLorme v. Sullivan, 924 F.2d 841, 849 (gth The district court must affirm the Commissionerts decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record.
42
'All of plaintiffs arguments as to a remand fox an immediate award of benefits have been considered by this court and found unpersuasive.
2
-
F I N D I N G S AND RECOMMENDATION
U.S.C. S 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (gth Cir.
1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
a.
The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 ( g t h Cir. 1986). If the evidence
supports the Commissionerfs conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner."
Cir. 2 0 0 1 ) .
DISABILITY ANALYSIS
Edlund v. Massanari, 253 F.3d 1152, 1156 ( g t h
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v.
Each
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. S 404.1520. step is potentially dispositive.
The claimant bears the burden Tacket v. A~fel,180
of proof at steps one through four. F.3d 1094, 1098 (gth Cir. 1999).
The burden shifts to the
Commissioner, at step five, to identify jobs existing in significant numbers in the national economy that the claimant can perform.
Id.; see also 20
C.F.R.
§
404.1560 (c)(2).
3 - FINDINGS AND RECOMMENDATION
Here, at step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged onset of disability;
see
20 C.F.R.
§
405.1520 ( b ) . had the following
At step two, the ALJ found that plaintiff
s e v e r e impairments: cervical degenerative disc disease and
seizure disorder;
see 20
C.F.R.
5 404.1520 (c).
At step three, the ALJ determined that plaintiff's impairments did not meet or equal the requirements of a listed impairment
;
see
20 C.F.R.
S S 404.1520 ( a ) (4)(iii), 404.1520 (6).
The ALJ assessed plaintiff with the residual functional capacity (RFC) to lift and carry a maximum of 10 pounds; during
an 8 hour workday she could sit for one hour at a time for up to
6 hours and could stand for 30 minutes at a time for up to 2
hours; she could walk for 2 blocks at a time; her use of her left upper extremity was moderately limited, as was her ability to maintain concentration, persistence and pace; 404.1520(e), 404.1545, 404.1567. At step four the ALJ found that plaintiff was perform her past relevant work as a t a x preparer;
§§
see
20 C.F.R. 55
able to 20 C.F.R.
see
404.1520 ( a ) ( 4 ) (iv), 404.1520 I f ) .
Because the ALJ found plaintiff not disabled at step four,
he did not continue with the sequential evaluation to step five.
4
-
FINDINGS AND RECOMMENDATION
DISCUSSION
Among other arguments, plaintiff contends that the ALJ failed to provide clear and convincing reasons for rejecting her testimony and that the Commissioner should have considered new evidence that was submitted after plaintiff's hearing.
Standards Reaardinu a Claimant's Testimonv
If the claimant produces objective medical evidence of an
underlying impairment which could reasonably be expected to produce some degree of the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ must assess the credibility of the claimant regarding the severity of symptoms. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Cotton
v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986).
In assessing a claimant's credibility the ALJ may consider:
(1) ordinary techniques of credibility evaluation, such as the
claimant's reputation for lying, prior inconsistent statements concerning symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) the objective medical evidence; (5) the location, duration, frequency, and intensity of symptoms; (6) precipitating and aggravating factors; (7) the type, dosage, effectiveness, and
5
- FINDINGS AND RECOMMENDATION
side effects of any medication; and (8) treatment other than medication. See Smolen, 80 .3d at 1284; see also SSR 96-7p. The ALJ may not reject a claimant's testimony about the severity of his symptoms solely because it is not corroborated fully by objective medical findings. Cotton, 799 F.2d at 1408.
The ALJ may reject the claimant's testimony regarding the severity of her symptoms only by providing clear and convincing reasons for doing so. Dodrill v. Shalala, 12 F.3d 915, 918 (9th
Cir. 1993); Smolen, 80 F.3d at 1283. Claimant testified that her pain is a barrier to working. Among other things, the ALJ stated: Considering the entire case record, the claimant fails to convince the undersigned that she is so impaired that she cannot perform any kind bf gainful work. Consequently, her subjective complaints cannot be found sufficiently credible to serve as additive evidence to support a finding of disability.
TR. 2 4 .
As discussed below, there are legitimate questions as to
whether the reasons given by the ALJ for the rejection of claimant's testimony were clear and convincing. The ALJ noted in his opinion that "[wlhen asked by her
representative what her 'biggest barrier to workingf was the claimant said it was pain ..." TR 22.
The
ALJ added a footnote
to this sentence that stated "[alfter being asked the question the claimant hesitated and the representative volunteered,
6 - FINDINGS AND RECOMMENDATION
"pain?"
Footnote 1 at TR 22.
When discussing the plaintiff's
work history as a reason for rejecting claimant's testimony, the
ALJ wrote "the claimant testified that the significant reasons
for her leaving her last job as a tax preparer were because she was not making enough money and she had difficulty working and keeping up with her duties at home." TR 23.
The ALJ added a
footnote to this sentence that stated "The claimant practically had to be coached by her representative into admitting that pain was one of the reasons she stopped working." Footnote 2 at TR
23. However, the transcript of the hearing plainly shows that
claimant answered without any "coaching" and that the representative's question "Pain?" was asked immediately after claimant had answered "pain." The question "Pain?" was asked by
the representative in an effort to get claimant to elaborate, not to suggest an answer. TR. 254.
The ALJ also added a footnote to a discussion of plaintiff's daily activities that stated nCuriously, the claimant testified that she cooks simple meals and does not use public transit, yet assert
in their written statements the claimant and her daughter just the opposite!" Footnote 3 at TR 23.
At the hearing,
claimant testified that she has not used public transportation "for about three years" and that she prepared extremely basic meal for herself. TR. 264, 263. Claimant's Function Report and
the report completed by her daughter, both dated September 1,
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F I N D I N G S AND RECOMMENDATION
2004, stated that she did occasionally take public
transportation. TR. 123, TR 133. However, both reports were completed more than three years before the hearing. The Commissioner states in a footnote in its brief to this court that "the ALJ gave two reasons for partially discounting plaintiff's credibility that the Commissioner will not further discuss in this brief, including possible coaching by plaintiff's representative and possible inconsistencies in plaintiff's statements about her preparation of meals and her use of public transportation. Tr. 23, n. 2 and n3. The Commissioner concedes
that these grounds were arguably improper under the facts of this case." Footnote 2 of p.12 of Defendant's Brief (#14). Although an ALJ can reject a claimant's testimony by using prior inconsistent statements and testimony by the claimant that appears less than candid, the ALJ's footnotes set forth above indicate a mistaken reading or recollection of the facts and are not supported by substantial evidence in the record. the Although
Commissioner argues that the other reasons given by the ALJ
for discounting credibility were more than sufficient to establish that the ALJ "did not arbitrarily discredit claimant's testimony," footnote 2 of p. 12 of Defendant's Brief (#14), the aforementioned errors may very well have influenced the ALJ's overall credibility analysis and it is questionable if the ALJ's reasons for rejecting claimant's testimony are clear and
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-
FINDINGS AND RECOMMENDATION
convincing and based on substantial evidence in the record. Accordingly, the ALJ's decision should be reversed.
The issue now is if the reversal should be accompanied by a remand for benefits or a remand for further proceedings. decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court.
Harman v. Apfel, 2 1 1 F.3d 1 1 7 2 , 1178 (gth Cir.), cert.
The
denied, 5 3 1 U.S. 1 0 3 8 ( 2 0 0 0 ) .
further proceedings.
The issue turns on the utility of
A remand for an award of benefits is
appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is not sufficient to support the Commissioner's decision.
( g t h Cir. 1 9 8 9 ) . R o d r i g u e z v. Bowen, 8 7 6 F. 2d 759, 763
Improperly rejected evidence should be credited and an immediate award of benefits directed where:
( I ) the ALJ has
failed to provide legally sufficient reasons for rejecting such evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and
(3) it is clear from the record that the ALJ would be required to
find the claimant disabled were such evidence credited.
Harman
v. A p f e l , 2 1 1 F.3d a t 1178 citing Smolen v. C h a t e r , 8 0 F.3d 1 2 7 3 ,
1292 ( g t h Cir. 1 9 9 6 ) .
Of course, the third prong of this test is
See Harman, 211 F.3d at 1 1 7 8
actually a subpart of the second.
n. 7 . 9 - FINDINGS AND RECOMMENDATION
Remanding this case for further proceedings is a prudent exercise of discretion as the ALJ gave several reasons for
discounting plaintiff's testimony, but it is unclear if errors made in parts of the credibility analysis influenced the overall credibility analysis, and , further, step five of the sequential process was not completed. Moreover, the medical expert called by the A L J to testify noted that "[rlegrettably we've learned much more from the claimant than one will from [her medical] record." TR 271. In discussing a record from one of plaintiff's doctors,
the medical expert called to testify stated, ll[t]he important thing is [the doctor] suggested for evaluation that the - -her patient should have an MRI of the cervical spine.
In this record
... we
have no MRI report."
- Claimant subsequently obtained a Id.
MRI and report.
As a remand for further proceedings is appropriate due to
the credibility analysis, the ALJ should also consider the MRI and reports from chiropractor Seward and Dr. Townsend upon
remand. There are outstanding issues that must be resolved
before a determination of disability can be made and the three prongs of Harman have not been met. Accordingly, the District
Court should exercise its discretion in favor of further proceedings.
10 - FINDINGS AND RECOMMENDATION
CONCLUSION
Based on the foregoing, the Commissioner's decision should be reversed and remanded for further proceedings pursuant to sentence four of 42 U . S . C .
§405(g).
Upon remand, the ALJ should
consider and reevaluate all of the evidence in the record without consideration of the erroneous information contained in the footnotes of the ALJ's previous opinion and with consideration of claimant's MRI and reports from chiropractor Seward and Dr. Townsend.
The ALJ should then perform a new five-step
sequential process to determine if plaintiff is disabled and issue a new opinion.
December, 2009.
Thomas Cqffin United hates Magistrate Judge
11 - F I N D I N G S AND RECOMMENDATION
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