Mary Jane Newell v. Michael J. Astrue, No. 2:2010cv08370 - Document 19 (C.D. Cal. 2012)
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)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARY JANE NEWELL, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-08370-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on November 8, 2010, seeking review of 19 the denial of plaintiff s application for supplemental security income 20 ( SSI ). On December 28, 2010, the parties consented, pursuant to 28 21 U.S.C. 636(c), 22 Magistrate Judge. The parties filed a Joint Stipulation on November 30, 23 2011, in which: 24 decision and awarding benefits or, alternatively, remanding for further 25 administrative proceedings; and the Commissioner requests that his 26 decision 27 administrative proceedings. 28 Stipulation under submission without oral argument. § be to proceed before the undersigned United States plaintiff seeks an order reversing the Commissioner s affirmed or, alternatively, remanded for further The Court has taken the parties Joint 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On October 16, 2007, plaintiff filed an application for SSI. 4 (Administrative Record ( A.R. ) 15.) Plaintiff, who was born on June 6, 5 1960 (A.R. 19),1 claims to have been disabled since June 30, 2007 (A.R. 6 15), due to cirrhosis of the liver and frailty (A.R. 38). 7 Plaintiff s claim was denied initially and upon reconsideration 8 9 (A.R. 15, 38-42); plaintiff then requested a hearing (A.R. 44). On 10 December 18, 2008, plaintiff, who was represented by counsel, appeared 11 and testified at a hearing before Administrative Law Judge Edward C. 12 Graham (the ALJ ). 13 also testified. 14 claim 15 plaintiff s request for review of the ALJ s decision (A.R. 1-4). 16 decision is now at issue in this action. (A.R. (A.R. 15, 20-36.) (Id.) 15-19), Vocational expert Randi Hetrick On April 3, 2009, the ALJ denied plaintiff s and the Appeals Council subsequently denied That 17 18 SUMMARY OF ADMINISTRATIVE DECISION 19 20 The ALJ found that plaintiff has not engaged in substantial gainful 21 activity since October 16, 2007, the application date. 22 ALJ determined that plaintiff has the severe impairment of cirrhosis of 23 the liver. 24 impairment or a combination of impairments that meets or equals one of 25 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 (Id.) (A.R. 18.) The He also determined that plaintiff does not have an 26 27 28 1 On the date of the ALJ s decision, plaintiff was 48 years old, which is defined as a younger individual. (A.R. 19; citing 20 C.F.R. § 416.963.) 2 1 C.F.R. §§ 416.925, 416.926). (Id.) 2 3 After reviewing the record, the ALJ determined that plaintiff has 4 the residual functional capacity ( RFC ) to perform the full range of 5 sedentary work as defined in 20 C.F.R. § 416.967(a). 6 ALJ concluded that, with this RFC, plaintiff would not be able to 7 perform any past relevant work. 8 plaintiff s age, education,2 work experience, and RFC, as well as the 9 testimony of the vocational expert, the ALJ found that plaintiff could 10 perform jobs in the national economy, including order clerk, call-out 11 operator, or assembler. 12 plaintiff has not been disabled within the meaning of the Social 13 Security Act since October 16, 2007, the date the application was filed. 14 (Id.) (Id.) (Id.) (A.R. 19.) The However, after considering Accordingly, the ALJ concluded that 15 STANDARD OF REVIEW 16 17 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 19 decision to determine whether it is free from legal error and supported 20 by substantial evidence in the record as a whole. 21 F.3d 625, 630 (9th Cir. 2007). 22 evidence as a reasonable mind might accept as adequate to support a 23 conclusion. 24 a mere scintilla but not necessarily a preponderance. 25 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 26 record can constitute substantial evidence, only those reasonably drawn Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the 27 2 28 The ALJ determined that plaintiff has a high school education and is able to communicate in English. (A.R. 19.) 3 1 from the record will suffice. Widmark v. Barnhart, 454 F.3d 1063, 2 1066 (9th Cir. 2006)(citation omitted). 3 4 Although this Court cannot substitute its discretion for that of 5 the Commissioner, the Court nonetheless must review the record as a 6 whole, weighing both the evidence that supports and the evidence that 7 detracts from the [Commissioner s] conclusion. 8 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 9 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). Desrosiers v. Sec y of The ALJ is 10 responsible for determining credibility, resolving conflicts in medical 11 testimony, and for resolving ambiguities. 12 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 13 14 The Court will uphold the Commissioner s decision when the evidence 15 is susceptible to more than one rational interpretation. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 17 review only the reasons stated by the ALJ in his or her decision and 18 may not affirm the ALJ on a ground upon which he [or she] did not rely. 19 Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. 20 not reverse the Commissioner s decision if it is based on harmless 21 error, which exists only when it is clear from the record that an ALJ s 22 error 23 determination. 24 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 25 2006)); see also Burch, 400 F.3d at 679. 26 /// 27 /// 28 /// was inconsequential to the Burch v. However, the Court may ultimate The Court will nondisability Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 4 1 DISCUSSION 2 3 4 Plaintiff claims that the ALJ did not reject her subjective symptom testimony properly. (Joint Stipulation ( Joint Stip. ) at 4-13, 18.) 5 6 7 I. The ALJ Failed To Give Clear And Convincing Reasons For Rejecting Plaintiff s Testimony. 8 9 Once a disability claimant produces objective medical evidence of 10 an underlying impairment that is reasonably likely to be the source of 11 claimant s subjective symptom(s), all subjective testimony as to the 12 severity of the symptom(s) must be considered. 13 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 14 (9th Cir. 1991)(en banc); see also 20 C.F.R. § 416.929(a) (explaining 15 how pain and other symptoms are evaluated). 16 finding of malingering based on affirmative evidence thereof, he or she 17 may only find an applicant not credible by making specific findings as 18 to credibility and stating clear and convincing reasons for each. 19 Robbins, 466 F.3d at 883. 20 claimant s credibility include: 21 truthfulness; (2) inconsistencies either in the claimant s testimony or 22 between the claimant s testimony and her conduct; (3) the claimant s 23 daily activities; (4) the claimant s work record; and (5) testimony from 24 physicians and third parties concerning the nature, severity, and effect 25 of the symptoms of which the claimant complains. 26 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 27 416.929(c). Moisa v. Barnhart, 367 [U]nless an ALJ makes a The factors to be considered in weighing a (1) the claimant s reputation for 28 5 See Thomas v. 1 An ALJ may not rely on a plaintiff s daily activities to support an 2 adverse credibility determination when those activities do not affect 3 the claimant s ability to perform appropriate work activities on an 4 ongoing and daily basis. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 5 Cir. 1990). 6 a sustained basis. 7 1995)(emphasis in original)(citing 20 C.F.R. § 404.1512(a)). A claimant 8 need not be utterly incapacitated to be eligible for benefits . . . and 9 many home activities are not easily transferable to what may be the more 10 grueling environment of the workplace, where it might be impossible to 11 periodically rest or take medication. Fair v. Bowen, 885 F.2d 597, 602 12 (9th Cir. 1989). The ALJ must evaluate the claimant s ability to work on Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 13 14 The ALJ made no specific finding as to whether plaintiff s 15 impairment could reasonably be expected to produce the symptoms of which 16 she complains - to wit, abdominal pain and limitations in, inter alia, 17 sitting, standing, bending, stooping, crawling, crouching, lifting, and 18 carrying. 19 impairment of cirrhosis of the liver is severe (A.R. 16) and the medical 20 record, which includes, inter alia, findings of ascitis, macrocytic 21 anemia, and hernias (see, e.g., A.R. 210, 236-37, 246-49), it appears 22 that plaintiff s impairment(s) could reasonably be expected to produce 23 such symptoms. 24 plaintiff. 25 testimony must be clear and convincing. However, based on the ALJ s finding that plaintiff s Further, the ALJ cites no evidence of malingering by Accordingly, the ALJ s reason for rejecting plaintiff s 26 27 28 At the administrative hearing, plaintiff testified cirrhosis of the liver causes her to retain fluids. 6 that her (A.R. 26-27.) 1 Plaintiff testified that the fluids she retains settle in her stomach3 2 and cause her to have difficulty bending, sitting, laying down, and 3 sleeping. 4 can sit for half an hour before she must get up and walk; can sit for a 5 total of two hours in an eight hour day; can stand or walk for maybe an 6 hour, hour and a half total in an eight hour day; and cannot stoop, 7 crouch, or crawl, because she cannot get back up without help. 8 32.) (A.R. 27.) Specifically, plaintiff testified that she only: (A.R. 9 10 Plaintiff also testified that she has an abdominal hernia for which 11 she wears a brace. (A.R. 28.) 12 to prevent injury from lifting things and hitting objects, such as 13 a table. 14 lifting or carrying, [b]ecause the [d]octor tells [her] not to. (A.R. 15 26-27.) (A.R. 28.) She testified that she wears the brace Plaintiff further testified that she cannot do any 16 17 With respect to her daily activities, plaintiff testified that she 18 crochets to build strength in her hands, shops, drives, might cook 19 dinner, and goes to medical appointments and the American Legion, a 20 veteran s organization, twice or three times a week. 21 Plaintiff testified that she does not perform any housework, such as 22 laundry or cleaning. (A.R. 30, 32-33.) (A.R. 33.) 23 24 The ALJ found that plaintiff was not credible, because: (1) [t]he 25 record showed that her condition is stable with medications ; (2) at the 26 administrative hearing, plaintiff appeared alcohol-looking with a 27 3 28 Plaintiff testified that she had excess fluids from her stomach drained on two separate occasions. (A.R. 27.) 7 1 height of 62 inches 2 exaggerated 3 activities are . . . inconsistent with her allegations. her pain and and a weight of symptoms ; 104 pounds ; and (4) (3) plaintiff plaintiff s daily (A.R. 18.) 4 5 The ALJ s first ground for finding plaintiff to be not credible - 6 to wit, that plaintiff s condition is stable with medications -- is not 7 clear and convincing. While impairments that are controlled effectively 8 with medications are not considered disabling, the medical finding that 9 plaintiff s impairment is stable does not necessarily mean that her 10 symptoms are controlled in a manner that would allow her to work. 11 fact, despite notations that plaintiff s cirrhosis of the liver is 12 stable, a May 30, 3008 treatment note states that plaintiff will 13 likely 14 treatment note states that plaintiff is pending referral to UCLA for 15 [a] liver transplant (A.R. 248), and a September 25, 2008 treatment 16 note states that plaintiff will be referred to UCLA (A.R. 246). 17 Accordingly, when plaintiff s treatment notes are read as a whole, her 18 referral for a liver transplant belies a finding that her impairment is 19 effectively controlled with medications. 20 cannot constitute a clear and convincing reason for finding plaintiff to 21 be not credible. require [a liver] transplant (A.R. 249), a July 2, In 2008 As such, the ALJ s reasoning 22 23 The ALJ s second reason for finding plaintiff to be not credible - 24 to wit, that plaintiff appeared alcohol-looking with a height of 62 25 inches and a weight of 104 pounds - is unpersuasive. 26 matter, it is not permissible for the ALJ to rely solely on the 27 claimant s appearance at the hearing (sometimes called sit and squirm 28 jurisprudence) as a basis for an adverse credibility finding. 8 As an initial Verduzco 1 v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999); Perminter v. Heckler, 15 2 F.3d 3 plaintiff s height and weight, the ALJ does not explain, at either the 4 hearing or in his decision, what he means by his description of 5 plaintiff as, or his basis for believing plaintiff to be, alcohol- 6 looking. Accordingly, this reason is not a clear and convincing reason 7 for rejecting plaintiff s subjective symptom testimony. 870, 872 (9th Cir. 1985). Moreover, beyond commenting on 8 9 The ALJ s third reasons for finding plaintiff to be not credible is 10 equally unpersuasive. The ALJ rejects plaintiff s testimony, because 11 [i]t was . . . noted that plaintiff exaggerated her pain and symptoms. 12 (A.R. 18.) 13 and boilerplate statement cannot constitute a clear and convincing 14 reason for finding plaintiff s testimony to be not credible. 15 although not entirely clear, to the extent the ALJ rejects plaintiff s 16 testimony 17 plaintiff s alleged pain and symptoms, the ALJ errs. 18 established that the failure of the medical record to corroborate 19 plaintiff s subjective symptom testimony fully is not, by itself, a 20 legally sufficient basis for rejecting such testimony. 21 Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Bunnell, 947 F.2d at 347 22 (noting that [i]f an adjudicator could reject a claim of disability 23 simply because [plaintiff] fails to produce evidence supporting the 24 severity of the pain there would be no reason for an adjudicator to 25 consider anything other than medical findings ). Accordingly, for the 26 aforementioned cannot, 27 constitute a clear and convincing reason for rejecting plaintiff s 28 testimony. However, without any supporting evidence, the ALJ s vague because there reasons, is the no evidence ALJ s 9 supporting statement the Further, degree of It is well Rollins v. by itself, 1 The ALJ s last reason for finding plaintiff to be not credible - 2 to wit, that plaintiff s daily activities are inconsistent with her 3 allegations - is also neither clear nor convincing. 4 finding, the ALJ states that plaintiff portrayed herself as being 5 practically non-functional; alleging that she mostly sat on the couch 6 and crochets, she grocery shopped, drove her car and goes to the 7 American Legion, where she used to work, three times a week (per 8 testimony). 4 9 plaintiff s minimal daily activities and home activities translate into (A.R. 18.) In support of his Significantly, the ALJ fails to explain how 10 the ability to perform sustained work. See Fair, 885 F.2d at 602 11 (noting that many home activities are not easily transferable to what 12 may be the more grueling environment of the workplace ); see also 13 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)(noting that the 14 mere fact that a plaintiff has carried on certain daily activities, such 15 as grocery shopping, driving a car, or limited walking for exercises, 16 does not in any way detract from [plaintiff s] credibility as to her 17 overall disability ). 18 plaintiff s testimony is neither clear nor convincing.5 Accordingly, the ALJ s last reason for rejecting 19 20 21 4 22 23 24 25 26 27 28 The Court notes that the Commissioner presents additional reasons for rejecting plaintiff s subjective complaints, which the ALJ did not provide in his decision. This Court may not rely on reasons the ALJ did not provide in his decision. Connett, 340 F.3d at 874 ( We are constrained to review the reasons the ALJ asserts ); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)(noting that the Court cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision ). 5 In discussing plaintiff s daily activities, the ALJ also notes that plaintiff does not appear to be too motivated to work. (A.R. 18.) While the ALJ s opinion regarding plaintiff s motivation to work is entitled to some deference, this reason alone is not sufficient to reject plaintiff s testimony. 10 1 Accordingly, for the aforementioned reasons the ALJ failed to give 2 clear and convincing reasons, as required, for finding plaintiff s 3 testimony to be not credible. This constitutes error. 4 5 II. Remand Is Required. 6 7 The decision whether to remand for further proceedings or order an 8 immediate award of benefits is within the district court s discretion. 9 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 10 useful purpose would be served by further administrative proceedings, or 11 where the record has been fully developed, it is appropriate to exercise 12 this discretion to direct an immediate award of benefits. 13 ( [T]he decision of whether to remand for further proceedings turns upon 14 the likely utility of such proceedings. ). 15 outstanding issues that must be resolved before a determination of 16 disability can be made, and it is not clear from the record that the ALJ 17 would be required to find the claimant disabled if all the evidence were 18 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 19 20 Remand is the appropriate remedy to allow the ALJ the opportunity 21 to remedy the above-mentioned deficiencies and errors. See, e.g., 22 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 23 further proceedings is appropriate if enhancement of the record would be 24 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 25 (remand appropriate to remedy defects in the record).6 On remand, the 26 27 28 6 Plaintiff has requested that this Court credit her testimony as true and remand for the payment of benefits and/or further administrative proceedings. In the Ninth Circuit, courts have the 11 1 ALJ must revisit plaintiff s 2 plaintiff s 3 plaintiff s testimony is not credible. After so doing, the ALJ may need 4 to reassess plaintiff s RFC, in which case, testimony from a vocational 5 expert likely will be needed to determine what work, if any, plaintiff 6 can perform. 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// testimony or give testimony clear and and must either convincing credit reasons why 14 15 16 17 18 19 discretion to credit as true the testimony of claimants when the ALJ has failed to provide legally sufficient reasons for rejecting the same. See, e.g., Connett, 340 F.3d at 876 (holding that [i]nstead of being a mandatory rule, we have some flexibility in applying the credit as true theory ). In cases where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant s excess pain testimony were credited, applying the credit as true rule is appropriate. Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). 20 21 22 23 24 25 26 27 28 Here, if plaintiff s testimony were credited as true, it is unclear whether plaintiff would be considered disabled under the Social Security Act. At the hearing, plaintiff s counsel asked the vocational expert whether a hypothetical person with plaintiff s age, education, and past relevant work experience who can lift and carry less than ten [pounds], [s]tand and walk an hour, sit for about two, and cannot do any bending, stooping, crouching, and crawling would be able to perform the jobs identified by the vocational expert. (A.R. 35.) In reply, the vocational expert stated that such an individual would not be able to sustain full time employment at any exertional level. (Id.) Critically, however, plaintiff testified that she could stand and/or walk for one to one and a half hours at a time - a range which was not included in the hypothetical to the vocational expert. Accordingly, because it is unclear whether plaintiff s testimony, if credited as true, would require a finding of disability, the Court declines to credit her testimony as true. 12 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: January 5, 2012 14 15 16 17 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 13
]]>
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.
