Michael T. White v. Michael J. Astrue, No. 2:2008cv08389 - Document 18 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is granted; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 MICHAEL T. WHITE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________ ) No. CV 08-8389-RC OPINION AND ORDER 16 17 Plaintiff Michael T. White filed a complaint on December 24, 18 2008, seeking review of the Commissioner s decision denying his 19 applications for disability benefits. 20 Commissioner answered the complaint, and the parties filed a joint 21 stipulation on July 6, 2009. On May 20, 2009, the 22 23 24 BACKGROUND On May 15, 2006, plaintiff, who was born April 18, 1966, applied 25 for disability benefits under Title II of the Social Security Act 26 ( Act ), 42 U.S.C. § 423, and the Supplemental Security Income program 27 ( SSI ) of Title XVI of the Act, claiming an inability to work since 28 September 27, 2004, due to back problems and impaired vision. 1 Certified Administrative Record ( A.R. ) 117, 162-66, 169. The 2 plaintiff s applications were initially denied on December 22, 2006, 3 and were again denied on June 4, 2007, following reconsideration. 4 A.R. 126-36. 5 which was held before Administrative Law Judge John C. Tobin ( the 6 ALJ ) on April 9, 2008. 7 issued a decision finding plaintiff is not disabled. 8 137. 9 which denied review on October 30, 2008. The plaintiff then requested an administrative hearing, A.R. 74-109. On April 26, 2008, the ALJ A.R. 114-25, The plaintiff appealed this decision to the Appeals Council, A.R. 1-5. 10 11 DISCUSSION 12 I 13 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 14 review the decision denying plaintiff disability benefits to determine 15 if his findings are supported by substantial evidence and whether the 16 Commissioner used the proper legal standards in reaching his decision. 17 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 18 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 19 20 The claimant is disabled for the purpose of receiving benefits 21 under the Act if he is unable to engage in any substantial gainful 22 activity due to an impairment which has lasted, or is expected to 23 last, for a continuous period of at least twelve months. 24 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 25 The claimant bears the burden of establishing a prima facie case of 26 disability. 27 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 28 1289 (9th Cir. 1996). 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 2 1 The Commissioner has promulgated regulations establishing a five- 2 step sequential evaluation process for the ALJ to follow in a 3 disability case. 4 the ALJ must determine whether the claimant is currently engaged in 5 substantial gainful activity. 6 If not, in the Second Step, the ALJ must determine whether the 7 claimant has a severe impairment or combination of impairments 8 significantly limiting him from performing basic work activities. 9 C.F.R. §§ 404.1520(c), 416.920(c). 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 10 must determine whether the claimant has an impairment or combination 11 of impairments that meets or equals the requirements of the Listing of 12 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 13 C.F.R. §§ 404.1520(d), 416.920(d). 14 ALJ must determine whether the claimant has sufficient residual 15 functional capacity despite the impairment or various limitations to 16 perform his past work. 17 in Step Five, the burden shifts to the Commissioner to show the 18 claimant can perform other work that exists in significant numbers in 19 the national economy. 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 20 21 Applying the five-step sequential evaluation process, the ALJ 22 found plaintiff has not engaged in substantial gainful activity since 23 his alleged onset date, September 27, 2004. 24 found plaintiff has the following severe impairments: 25 blindness, history of sickle cell retinopathy and vitreous 26 hemorrhaging in the right eye status post[-]laser treatment, 27 degenerative disc disease of the lumbar spine, and adverse side 28 effects from pain medication (Step Two); however, he does not have an 3 (Step One). The ALJ then left eye 1 impairment or combination of impairments that meets or equals a 2 Listing. 3 to perform his past relevant work. 4 determined plaintiff can perform a significant number of jobs in the 5 national economy; therefore, he is not disabled. (Step Three). The ALJ next determined plaintiff is unable (Step Four). Finally, the ALJ (Step Five). 6 II 7 8 9 A claimant s residual functional capacity ( RFC ) is what he can still do despite his physical, mental, nonexertional, and other 10 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 11 see also Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 12 Cir. 2009) (RFC is a summary of what the claimant is capable of doing 13 (for example, how much weight he can lift). ). 14 plaintiff has the RFC to: Here, the ALJ found 15 16 lift and carry 20 pounds occasionally and 10 pounds 17 frequently, stand/walk 4 hours in an 8-hour workday, sit 4 18 hours in an 8-hour workday, a need to change positions from 19 sitting, standing or walking every ½ an hour, occasional 20 stooping, kneeling, crouching and crawling, he has only 21 monocular vision (vision in one eye) and as a result depth 22 perception is limited to occasional, and secondary to pain 23 and pain medications he has between mild and mild-to- 24 moderate limitation in attention, concentration, 25 understanding and memory. 26 27 A.R. 120. However, plaintiff contends the ALJ s RFC assessment is not 28 supported by substantial evidence because the ALJ erroneously 4 1 determined he was not a credible witness. The plaintiff is correct. 2 3 At the administrative hearing,1 plaintiff testified that he has 4 constant lower back pain, which sometimes spreads down his legs. A.R. 5 81, 179-81. 6 minutes before having to get up and move around, and stand for only 7 about 10 minutes before having to change positions. 8 plaintiff also stated that after changing positions approximately 9 three times, he needs to lie down and rest, and he lies down at least He further testified that he can sit for only about 10 A.R. 82-83. A.R. 82-83. The 10 two to three hours a day. Further, plaintiff stated he 11 can walk approximately 100 feet outside his home and he is able to 12 drive. A.R. 83, 181. 13 14 Once a claimant has presented objective evidence that he suffers 15 from an impairment that could cause pain or other nonexertional 16 limitations,2 the ALJ may not discredit the claimant s testimony 17 solely because the degree of pain alleged by the claimant is not 18 supported by objective medical evidence. 19 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d Bunnell v. Sullivan, 947 20 21 22 23 24 25 26 27 28 1 After the ALJ issued his decision denying plaintiff benefits, plaintiff submitted additional medical records to the Appeals Council. A.R. 316. Since the Appeals Council affirmed the decision of the ALJ denying benefits to [the plaintiff, the additional] evidence is part of the record on review to this court. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.), cert. denied, 519 U.S. 881 (1996); Vasquez, 572 F.3d at 595 n.7. 2 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 5 1 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant s 2 subjective complaints are not credible, he must provide specific, 3 cogent reasons for the disbelief. 4 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 5 635 (9th Cir. 2007). 6 establishing an objective basis for some degree of pain and related 7 symptoms, and no evidence affirmatively suggesting that the claimant 8 is malingering, the ALJ s reasons for rejecting the claimant's 9 testimony must be clear and convincing. Greger v. Barnhart, 464 F.3d 968, Furthermore, if there is medical evidence Morgan v. Comm r of the 10 Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 572 F.3d 11 at 591 (9th Cir. 2009). 12 13 Here, the ALJ found plaintiff s statements concerning the 14 intensity, persistence and limiting effects of [his] symptoms are not 15 credible to the extent they are inconsistent with the [RFC] assessment 16 . . . because his subjective complaints and alleged limitations[: 17 (a)] are out of proportion to the objective findings . . . [and t]here 18 is no evidence of severe disuse muscle atrophy that would be 19 compatible with the claimant s alleged inactivity and inability to 20 function [; and (b)] [t]here is no evidence of ongoing treatment for 21 back pain or use of an assistive device for ambulation . . . and 22 [i]t is reasonable to assume that if the claimant were experiencing 23 the disabling problems alleged, he would have received more aggressive 24 treatment. 3 A.R. 123. However, these reasons for finding plaintiff 25 26 27 28 3 The [t]here is evidence of treatment ; impairment ALJ found plaintiff not credible because: (a) no evidence of eye treatment since March 2006, and no use of psychiatric medication or mental health and (b) plaintiff s claim of a disabling vision is not credible because plaintiff drives 6 1 was not credible are not supported by substantial evidence. 2 3 First, the ALJ s adverse credibility findings were based on an 4 incomplete record that did not include the clinical, objective 5 evidence submitted to the Appeal Council showing plaintiff does, in 6 fact, have back injuries severe enough to warrant his treating 7 physician recommend surgery. 8 Scan performed on November 17, 2005, showed plaintiff has, among other 9 problems, a 3-4 mm. posterior disc protrusion at L4-L5 with moderate A.R. 21-73. For instance, a lumbar CT 10 to severe central canal stenosis, hypertrophic facet joints, and 11 ligamentum flavum hypertrophy with mild bilateral neural foraminal 12 stenosis. 13 January 4, 2005, was significant for disc protrusion at L4-5 with 14 moderate to severe central canal stenosis as well as mild bilateral 15 foraminal stenosis. A.R. 21-22. Similarly, a lumbar spine MRI performed on A.R. 26, 42. 16 17 Second, the absence of atrophy alone does not provide a basis for 18 rejecting a claimant s pain testimony. See, e.g., Miller v. Sullivan, 19 953 F.2d 417, 422-23 (8th Cir. 1992) ( [A]lthough muscle deterioration 20 may result from disuse, disabling pain does not always result in 21 muscle disuse. 22 simply because she does not show an effect that other people suffering 23 from disabling pain may show. ). Therefore, the ALJ cannot discount [claimant s] claim 24 25 26 27 28 occasionally and there is no evidence of any restriction on his driver s license, other than use of glasses. A.R. 123. Since plaintiff testified that his back pain prevents him from working, these findings regarding plaintiff s eyes and mental health do not support an adverse credibility determination, and the Court will not address them. 7 1 Third, the complete record shows plaintiff has received ongoing 2 medical treatment for his back pain, including multiple prescriptions 3 for pain medications, physical therapy, epidural and lumbar facet 4 injections, as well as two recommendations for lumbar spine surgery 5 after conservative treatment failed to alleviate plaintiff s pain. 6 A.R. 21-73. 7 testified he attends physical therapy and was waiting for approval to 8 see a pain management specialist. In fact, even at the administrative hearing, plaintiff A.R. 81. 9 10 Additionally, the ALJ found plaintiff was not credible because 11 [t]he record does not show adverse medication side effects, as 12 alleged by [him] and his representative. 13 ALJ is clearly allowed to consider . . . the lack of side effects from 14 prescribed medications in assessing a claimant s credibility, Orteza, 15 50 F.3d at 750; Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 16 2001), the record does not support this adverse finding. 17 plaintiff testified at the administrative hearing that Vicodin upsets 18 his stomach and makes him feel anxious, A.R. 79-80, and the medical 19 records submitted to the Appeals Council show plaintiff was treated 20 with multiple medications, which did upset his stomach. 21 205. 22 plaintiff s credibility are not clear and convincing since they are 23 not supported by substantial evidence, Reddick, 157 F.3d at 724; thus, A.R. 123. Although [a]n Rather, A.R. 41, For all these reasons,4 the ALJ s grounds for discrediting 24 25 26 27 28 4 Since the ALJ did not state that his adverse credibility determination was based on the finding that plaintiff was magnifying his symptoms, as suggested by a consulting orthopedic examiner, see A.R. 123, the Court need not consider whether this finding, without more, could support the ALJ s adverse credibility determination. 8 1 substantial evidence does not support the ALJ s step-five 2 determination. 3 2007). Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 4 5 III 6 When the Commissioner s decision is not supported by substantial 7 evidence, the Court has authority to affirm, modify, or reverse the 8 Commissioner s decision with or without remanding the cause for 9 rehearing. 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 10 1076 (9th Cir. 2002). Remand for further administrative proceedings 11 is appropriate if enhancement of the record would be useful. 12 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman v. Apfel, 13 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). 14 Here, since the ALJ provided insufficient findings as to whether 15 [plaintiff s] testimony should be credited as true, remand is the 16 appropriate remedy. 17 2003). 18 have the opportunity to consider the additional medical records 19 plaintiff presented to the Appeals Council. 20 97; see also Harman, 211 F.3d at 1180 ( While we properly may consider 21 the additional evidence presented to the Appeals Council in 22 determining whether the Commissioner s denial of benefits is supported 23 by substantial evidence, it is another matter to hold on the basis of 24 evidence that the ALJ has had no opportunity to evaluate that 25 [claimant] is entitled to benefits as a matter of law. 26 appropriate remedy in this situation is to remand this case to the 27 ALJ; the ALJ may then consider, the Commissioner then may seek to 28 // Benecke Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. Moreover, remand is appropriate here because the ALJ did not 9 Vasquez, 572 F.3d at 596- The 1 rebut and the [vocational expert] then may answer questions with 2 respect to the additional evidence. ). 3 ORDER 4 IT IS ORDERED that: (1) plaintiff s request for relief is 5 6 granted; and (2) the Commissioner s decision is reversed, and the 7 action is remanded to the Social Security Administration for further 8 proceedings consistent with this Opinion and Order, pursuant to 9 sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered 10 accordingly. 11 12 DATE: January 27, 2010 13 14 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\08-8389.mdo 1/27/10 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
