Gilbert L. Cisneros v. Michael J. Astrue, No. 2:2010cv04940 - Document 16 (C.D. Cal. 2011)
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 proceedings consistent with this Memorandum Opinion and Order. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 GILBERT CISNEROS, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-4940-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal from a decision by 19 Defendant Social Security Administration ( the Agency ), denying his 20 application for Disability Insurance benefits ( DIB ) and Supplemental 21 Security Income ( SSI ). 22 Judge ( ALJ ) erred in finding that he was not credible. 23 reasons explained below, the Court concludes that the ALJ erred and 24 remands the case to the Agency for further consideration. 25 26 Plaintiff claims that the Administrative Law For the II. SUMMARY OF PROCEEDINGS On October 6, 2006, Plaintiff applied for DIB and SSI, alleging 27 that he had been unable to work since January 1, 1990, due to 28 arthritis, hepatitis C, and osteoporosis. (Administrative Record 1 ( AR ) 115-20, 129, 133.) 2 reconsideration. 3 an ALJ, at which he appeared and testified. 4 2, 2008, the ALJ issued a decision denying benefits. 5 Plaintiff appealed to the Appeals Council, which denied review. 6 appeal followed. He then requested and was granted a hearing before 7 8 9 His claim was denied initially and on (AR 25-58.) On September (AR 12-22.) This III. DISCUSSION Plaintiff s only claim is that the ALJ erred in finding him not credible. For the following reasons, the Court agrees.1 10 ALJs are tasked with judging the credibility of witnesses. 11 making credibility determinations, they employ ordinary credibility 12 evaluation techniques. 13 1996). 14 impairment which could reasonably be expected to produce the symptoms 15 alleged and there is no evidence of malingering, the ALJ can only 16 reject the claimant s testimony for specific, clear, and convincing 17 reasons that are supported by substantial evidence in the record. 18 at 1283-84; Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 19 In Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. Where a claimant has produced objective medical evidence of an Id. Plaintiff testified that his right shoulder and left elbow pop 20 out and are painful; that his left shoulder and neck are always sore; 21 that his right hand gets numb; that his back once in a while goes 22 out, forcing him to sit or lay down; that his left foot swells up when 23 24 25 26 27 28 1 The Joint Stipulation is 17 pages long. Plaintiff sets out at page three that he is only challenging the ALJ s credibility finding and argues throughout the brief why he thinks the ALJ erred. In footnote two on page five, however, he argues that the ALJ erred when he found that Plaintiff s foot, shoulder, and migraine headaches were not severe impairments. This claim is rejected on procedural grounds. Plaintiff cannot bury an argument in a footnote on page five of a 17page brief and expect the Court to address it on the merits. 2 1 he walks because his big toe does not bend properly; and that he 2 suffers on-and-off from migraines lasting for at least an hour at a 3 time, during which he must lie down and apply cold packs to his head. 4 (AR 36-40.) 5 easily. He also testified that his hepatitis makes him tire (AR 42.) 6 The ALJ determined that Plaintiff was not credible because: 7 (1) he was not using narcotic medication to treat his alleged severe 8 pain and had not sought a stronger prescription; (2) he did not report 9 any adverse side effects from the medication that he was using; (3) he 10 failed to report for a consultative examination and failed to offer a 11 satisfactory reason for doing so; (4) he has a history of 12 incarceration; (5) his daily activities, other than overhead lifting, 13 are not compromised by his impairments; (6) his demeanor at the 14 hearing was inconsistent with his alleged limitations; (7) he is not 15 being seen by a mental health professional; (8) he worked as a 16 furniture mover for ten years during the period of alleged disability; 17 (9) he failed to disclose to the Agency in the application process 18 that he had worked as a furniture mover; and (10) he failed to report 19 his earnings from his job as a furniture mover to the IRS. 20 The Court addresses each in order. (AR 20.) 21 1. Failure to Use Stronger Pain Medication 22 The ALJ found that Plaintiff was not using narcotic pain 23 medication for his allegedly severe pain and had not sought a 24 stronger prescription from his doctors. 25 showed that Plaintiff s allegations of debilitating pain were not 26 entirely credible. (AR 20.) In his view, this (AR 20.) 27 Though a claimant s failure to use strong pain medication to 28 treat allegedly disabling pain is a legitimate reason for discounting 3 1 a claimant s credibility, see, e.g., Parra v. Astrue, 481 F.3d 742, 2 750-51 (9th Cir. 2007) (approving ALJ s discounting of claimant s 3 testimony that impairment was severe where claimant treated impairment 4 with over-the-counter medication), the ALJ s finding here that 5 Plaintiff was not using strong medication is not supported by the 6 record. 7 been taking Vicodin to control his pain and had at times been 8 prescribed other medications, including Butalbital, a barbiturate 9 prescribed for pain and headaches, and Hydrocodone and Tramadol, As the ALJ noted elsewhere in his decision, Plaintiff had 10 narcotic analgesics used to treat moderate to severe pain. 11 Plaintiff testified that he continued to take Tramadol three times a 12 day. 13 strong medication for his symptoms and there is no evidence that 14 stronger medication had been recommended but Plaintiff chose not to 15 take it. 16 he could not take stronger medication for his migraines because of 17 liver and his stomach problems. 18 find this reason for questioning Plaintiff s credibility to be 19 convincing. 20 2. 21 The ALJ questioned Plaintiff s credibility based on the fact that (AR 44.) (AR 19.) Thus, Plaintiff was taking what appears to be fairly Moreover, the ALJ did not address Plaintiff s testimony that (AR 40.) As such, the Court does not Lack of Side Effects 22 his condition was controllable with medications and he had not 23 reported adverse side effects from the medication. 24 these are valid reasons for questioning a claimant s testimony, see 20 25 C.F.R. § 416.929(c)(3)(iv); Social Security Ruling 96-7p (fact that a 26 claimant s medical condition can be controlled with medication that 27 does not cause side effects can be considered by the ALJ in 28 determining whether a claimant is credible); Orteza v. Shalala, 50 4 (AR 20.) Though 1 F.3d 748, 750 (9th Cir. 1995) (holding ALJ was permitted to consider 2 the lack of evidence of side effects from prescription medication in 3 discrediting claimant's testimony), they are not fully supported by 4 the record. Plaintiff reported that his use of Naproxen caused 5 drowsiness. (AR 153-54.) 6 condition was completely controlled by his medication or that he could 7 take stronger medication to control it due to liver and stomach 8 conditions. 9 questionable. 10 3. 11 The ALJ found that Plaintiff s failure to attend a consultative 12 internal medicine examination on March 5, 2008 -despite two reminder 13 notices and without any reason for not attending--undermined 14 Plaintiff s credibility. 15 convincing, either. 16 consultative examination can support a finding that the claimant is 17 not disabled, that inference is only proper where the claimant does 18 not have a good reason for not attending. 19 (AR 40.) It is also not clear that Plaintiff s Thus, the Court finds this justification Failure to attend consultative examination (AR 18, 20.) This justification is not Though a claimant s failure to attend a 20 C.F.R. § 416.918(a). Here, Plaintiff testified that he failed to attend the 20 examination because he had not received notice of the scheduled exam. 21 (AR 642.) 22 his decision, finding that Plaintiff had failed to offer any 23 explanation. 24 regulations, not receiving notice of an examination constitutes a 25 good reason not to attend. 26 ALJ ignored Plaintiff s explanation for not attending the examination 27 and because the explanation amounted to a good reason for missing the Though the ALJ heard this testimony, he overlooked it in (AR 18, 20.) This was error. Further, under the 20 C.F.R. § 416.918(b)(2). 28 5 Because the 1 appointment, the Court rejects this justification for questioning 2 Plaintiff s credibility. 3 4. History of Incarceration 4 The ALJ found that Plaintiff has a history of incarceration 5 which erodes his credibility. (AR 20.) Generally speaking, a 6 finding that a claimant has suffered past convictions involving 7 dishonesty may properly be used to find a claimant not credible. 8 e.g., Albridez v. Astrue, 504 F. Supp.2d 814, 822 (C.D. Cal. 2007) 9 (holding adverse credibility finding may be based on prior convictions See, 10 involving moral turpitude); Buck v. Astrue, 2011 WL 2600505, at *11 11 (W.D. Wash. June 28, 2011) (noting prior history of crimes involving 12 dishonesty has strong bearing on credibility ). 13 ALJ did not make any findings regarding the nature of Plaintiff s past 14 conviction. 15 Plaintiff was convicted of and whether it was a felony or a 16 misdemeanor. 17 the Court cannot say that it is a convincing reason to discredit 18 Plaintiff s testimony.2 Here, however, the Further, there is nothing in the record to explain what Absent some evidence as to the nature of his conviction, 19 5. 20 The ALJ found that Plaintiff s daily activities were inconsistent Daily Activities 21 with his alleged limitations, noting that the activities were not 22 compromised by any of his medical impairments, except for overhead 23 lifting, that there was no evidence that Plaintiff could not maintain 24 his hygiene, and that he remained capable of taking care of his 25 26 27 28 2 Plaintiff noted on his disability application that he had not been convicted of a felony. (AR 118.) The only reference to his incarceration is on a physical therapy progress note, which notes that Plaintiff received physical therapy in prison for four months, apparently some time in 2005 or 2006. (AR 571.) 6 1 personal and business affairs. 2 reasons for discounting Plaintiff s testimony. 3 (AR 20.) These are not convincing Plaintiff reported that he did some yard work and walked two 4 blocks to buy the L.A. Times each day, but that he needed help with 5 cooking and cleaning and that he could not sit for long periods of 6 time or lift more than 15 pounds. 7 not inconsistent with Plaintiff s claims that he was unable to get 8 around well enough to be able to work. 9 260 F.3d 1044, 1049-50 (9th Cir. 2001) (overruling ALJ s finding that (AR 154-58.) These activities are See, e.g., Vertigan v. Halter, 10 claimant was not credible when she claimed that she could not work 11 because she could perform daily activities where extent of daily 12 activities did not suggest that she performed them a substantial part 13 of the day or that they would transfer to work setting). 14 this reason is rejected. As such, 15 6. Hearing Demeanor 16 The ALJ found that Plaintiff s demeanor at the administrative 17 hearing was inconsistent with his claimed restrictions and 18 limitations. 19 finding on his observations of a claimant during the administrative 20 hearing where, for example, the claimant displays symptoms that are 21 inconsistent with the medical evidence, see Verduzco v. Apfel, 188 22 F.3d 1087, 1089 (9th Cir. 1999), the ALJ may not use the fact that a 23 claimant fails to manifest symptoms of his alleged pain as a basis for 24 discrediting his testimony. 25 872 (9th Cir. 1985). 26 Furthermore, the ALJ failed to describe Plaintiff s demeanor or to 27 explain how it was at odds with his alleged symptoms. 28 transcript reveal any clue as to what Plaintiff was doing that (AR 20.) Though an ALJ may base an adverse credibility See Perminter v. Heckler, 765 F.2d 870, That is what the ALJ appears to have done here. 7 Nor does the 1 undermined his claimed impairments. 2 As such, this reason is not convincing, either. 3 7. No Mental Health Treatment 4 The ALJ noted that Plaintiff s failure to undergo mental health 5 treatment called into question his credibility. 6 loss to understand how this finding diminishes Plaintiff s credibility 7 where Plaintiff was not alleging that he suffers from a mental 8 impairment. 9 8. 10 The Court is at a Thus, this ground is rejected. Work as a Furniture Mover After Alleged Onset Date Plaintiff alleged an onset date of January 1, 1990. The ALJ 11 found that Plaintiff had worked as a furniture mover from 1994 to 12 2004, and concluded that that fact cut into his credibility. 13 The Court agrees. 14 for ten years during the time he was allegedly so incapacitated he was 15 not capable of doing much of anything really undermines Plaintiff s 16 testimony. 17 like desks and filing cabinets on this job. 18 as very heavy work. 19 year (assuming his numbers are right and he was making about $8,000 a 20 year, working eight hours a day for nine dollars an hour). 21 that he was able to perform this work certainly calls into question 22 his claims in, for example, his pain questionnaire that he was hurt in 23 1984 and that, beginning in 1990, the pain from his injuries seriously 24 affected his activities. 25 for the ALJ to question Plaintiff s credibility and is supported by 26 substantial evidence in the record. (AR 20.) Plaintiff s ability to work as a furniture mover As Plaintiff explained, he was lifting and carrying things (AR 49.) (AR 49.) This is defined And he did it for more than 100 days a (AR 153-54.) 27 28 8 The fact Thus, this was a good reason 1 9. 2 3 Failure to Disclose Furniture Moving Job on Social Security Application The ALJ also questioned Plaintiff s credibility based on the fact 4 that he had failed to disclose that he worked as a furniture mover on 5 the forms he submitted to the Agency in connection with his 6 application for benefits. 7 valid reason for discounting a claimant s testimony. 8 v. Barnhart, 2003 WL 22862663, at *5-6 (N.D. Cal. Dec. 2, 2003); but 9 see Hostrawser v. Astrue, 364 Fed. App x 373, 377 (9th Cir. 2010) (AR 20.) Generally speaking, this is a See, e.g., Smith 10 (holding claimant s non-disclosure of income earned both before and 11 after disability application was just one discrepancy [that was] 12 unrelated to the medical symptoms and physical limitations at issue in 13 this case. ) 14 include this information on the forms, he did volunteer it at the 15 administrative hearing without prompting. 16 Agency, apparently, was not aware that Plaintiff had performed this 17 work and, it seems, had no way of discovering it absent Plaintiff s 18 admission because Plaintiff was being paid off the books. 19 47, 124.) 20 finding that Plaintiff s unsolicited admission that he had worked 21 while he was allegedly disabled establishes that he was lying when he 22 failed to identify the job on the forms that he submitted. If 23 anything, his admission seems to demonstrate the opposite. As such, 24 the Court does not find this reason very convincing. The problem here is that, although Plaintiff failed to (AR 35, 45-47.) The (AR 45- Under these circumstances, it is hard to endorse the ALJ s 25 10. Failure to File Tax Returns 26 The ALJ also based his adverse credibility finding on the fact 27 that Plaintiff failed to report his earnings from the furniture moving 28 job to the IRS. (AR 20.) Here, the Court agrees with the ALJ. 9 1 Plaintiff testified that he earned approximately $8,000 a year as 2 a furniture mover, but that he never filed tax returns reporting this 3 income. 4 valid reason for questioning his credibility, see, e.g., Berger v. 5 Astrue, 516 F.3d 539, 546 (7th Cir. 2008) (holding claimant s failure 6 to report income on tax returns supported ALJ s adverse credibility 7 determination), and is supported by the record. (AR 46-47.) Plaintiff s failure to report this income is a 8 11. This Case Warrants Further Analysis 9 In the end, of the ten reasons cited by the ALJ for rejecting 10 Plaintiff s testimony, the Court finds that two are valid and 11 convincing -the fact that Plaintiff was working as a furniture mover 12 for ten years despite his claimed disability and the fact that he 13 failed to report his income to the IRS -and eight are not.3 14 that remains is whether these two reasons are enough to uphold the 15 ALJ s decision. 16 1155, 1162 (9th Cir. 2008) (stating that the relevant inquiry . . . 17 is whether the ALJ's decision remains legally valid, despite errors 18 in the credibility analysis). 19 game in which, because the Court rejected the majority of the ALJ s 20 reasons, remand is required. 21 because the fact that Plaintiff was able to perform very heavy work The issue See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d Obviously, it is not simply a numbers This is particularly so in this case 22 23 24 25 26 27 28 3 The Agency asserts that several other grounds support the ALJ s credibility finding. It argues, for example, that Plaintiff presented no evidence of disability prior to September 2005, that his treatment was conservative and routine, and that the consultative examining physician s findings were unremarkable. (Joint Stip. at 911.) The ALJ never cited these reasons for rejecting Plaintiff s credibility, however, and, for that reason, the Court may not consider them. Pinto v. Massanari, 249 F.3d 840, 848-849 (9th Cir. 2001) (explaining court cannot affirm ALJ s decision for reason not specified by ALJ in his decision). 10 1 for ten years while supposedly disabled seems almost overwhelming 2 proof that his claims are contrived. 3 is convinced that remand for further proceedings is warranted. 4 will allow the ALJ to make a determination in the first instance 5 whether he would have found Plaintiff incredible based on these two 6 reasons alone. 7 opportunity to re-evaluate their position and seek, perhaps, to amend 8 the application to allege an onset date after Plaintiff stopped 9 working as a furniture mover. Ultimately, however, the Court This It will also give Plaintiff and his counsel an (In fact, he may not be eligible for 10 benefits during at least part of this period because the work likely 11 qualified as substantial gainful activity.) 12 finds this a close case, it concludes that the more prudent course 13 here is for remand to allow the Agency and the Plaintiff to address 14 these issues.4 Thus, though the Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Plaintiff asks the Court to remand the case for an award of benefits. The Court recognizes it has the authority to do so, see McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989), but concludes that that relief is not warranted here. As explained above, it is not clear to the Court from the record before it that Plaintiff is, in fact, credible or that he is disabled. Further proceedings are necessary to flesh this out. See Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (holding remand for further proceedings was appropriate where the record contained additional unanswered questions regarding the applicant s eligibility for benefits). 11 1 2 IV. CONCLUSION For the foregoing reasons, the Agency s decision is reversed and 3 the case is remanded for further proceedings consistent with this 4 Memorandum Opinion and Order. 5 IT IS SO ORDERED. 6 DATED: September 26, 2011 7 8 9 10 ________________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\CISNEROS, G 4940\memo opin and order.wpd 12
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