Carlos E Lopez v. Michael J Astrue, No. 2:2011cv03294 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) It is ordered that this matter be remanded for further proceedings consistent with this Memorandum Opinion. (rla)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 CARLOS E. LOPEZ, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) _ ) Case No. CV 11-3294-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Carlos E. Lopez ( Plaintiff ) seeks judicial review of 19 the Commissioner s final decision denying his applications for 20 Disability Insurance Benefits ( DIB ) and Supplemental Security Income 21 ( SSI ), pursuant to Titles II and XVI of the Social Security Act. For 22 the reasons stated below, the Commissioner s decision is remanded for 23 further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on January 20, 1958. (Administrative Record 27 ( AR ) at 90, 97). He completed eleven years of school and has relevant 28 work experience as a photocopy machine operator. (AR at 19, 27). 1 In April 2008, Plaintiff filed applications for DIB and SSI, 2 alleging that he has been disabled since November 1, 2007, due to 3 fibromyalgia, fatigue and pain. (AR at 90-98, 108). The Social Security 4 Administration denied Plaintiff s applications. (AR at 53-57). 5 An administrative hearing was held before Administrative Law Judge 6 Joel B. Martinez ( the ALJ ) on November 24, 2009. (AR at 24-50). 7 Plaintiff, who was represented by counsel, testified at the hearing. (AR 8 at 26-46). A vocational expert also testified at the hearing. (AR at 46- 9 49). On January 27, 2010, the ALJ issued a decision finding that 10 Plaintiff was able to perform his past relevant work and, therefore, was 11 not disabled. (AR at 19, 43-55). On February 16, 2011, the Appeals 12 Council denied review. (AR at 1-3). 13 Plaintiff commenced this action for judicial review on April 27, 14 2011. The parties filed a Joint Stipulation of disputed issues on 15 December 1, 2011. Plaintiff contends that the ALJ provided insufficient 16 reasons for rejecting Plaintiff s credibility. (Joint Stipulation at 3). 17 Plaintiff seeks remand for payment of benefits or, in the alternative, 18 remand 19 Commissioner requests that the ALJ s decision be affirmed. (Joint 20 Stipulation at 19). for further proceedings. (Joint Stipulation at 19). The 21 22 23 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 25 findings and decision should be upheld if they are free from legal error 26 and are supported by substantial evidence based on the record as a 27 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 28 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 1 evidence means such evidence as a reasonable person might accept as 2 adequate 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 4 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 5 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 6 2006)). To determine whether substantial evidence supports a finding, 7 the reviewing court must review the administrative record as a whole, 8 weighing both the evidence that supports and the evidence that detracts 9 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 10 720 (9th Cir. 1996). If the evidence can reasonably support either 11 affirming or reversing, the reviewing court may not substitute its 12 judgment for that of the Commissioner. Id. at 720-721. to support a conclusion. Richardson, 402 U.S. at 401; 13 14 III. DISCUSSION 15 Plaintiff claims that he suffers from migraine headaches, fatigue, 16 insomnia, anxiety, depression, and pain in his neck, shoulders, back, 17 and hips. (AR at 41-46). He contends that the ALJ failed to properly 18 evaluate his subjective complaints and credibility. (Joint Stipulation 19 at 5-16, 19). The Court agrees. 20 In general, an ALJ s assessment of credibility should be given 21 great weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 22 Questions of credibility and resolutions of conflicts in the testimony 23 are functions of the ALJ acting on behalf of the Commissioner. Morgan v. 24 Commissioner of Social Security, 169 F.3d 595, 599 (9th Cir. 1999); 25 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). If the ALJ s 26 interpretation 27 supported by substantial evidence, it is not the court s role to 28 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. of the claimant s 3 testimony is reasonable and is 1 2001). 2 The ALJ may employ ordinary techniques of credibility evaluation 3 and may take into account prior inconsistent statements or a lack of 4 candor by the witness. Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir. 5 1989). Once a claimant has presented medical evidence of an underlying 6 impairment, the ALJ may not discredit the claimant s testimony regarding 7 subjective pain and other symptoms merely because the symptoms, as 8 opposed 9 evidence. Lingenfelter, 504 F.3d at 1035-36; Reddick, 157 F.3d at 722; 10 Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Absent 11 evidence showing that a claimant is malingering, the ALJ may reject a 12 claimant s testimony about the severity of his symptoms only by offering 13 specific, clear and convincing reasons for doing so. Lingenfelter, 14 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 15 1996)). 16 findings. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). [T]he 17 ALJ must identify what testimony is not credible and what evidence 18 undermines 19 (citations and quotations omitted). to It the is the impairments, not are sufficient claimant s unsupported for the complaints. ALJ by to Reddick, objective make 157 only F.3d medical general at 722 20 Here, the ALJ discounted Plaintiff s credibility because Plaintiff 21 failed to seek proper medical treatment. (AR at 18). As the ALJ noted, 22 Plaintiff s 23 treatment from a specialist (rheumatologist) for his fibromyalgia, and 24 treatment at La Puente Mental Health for his complaints of anxiety and 25 depression. (AR at 18-19, 37-38, 161, 191-93). Plaintiff, however, did 26 not follow up with such recommendations. (AR at 18-19, 37-38). treating physician recommended that Plaintiff obtain 27 Generally, a claimant s failure to seek treatment or to follow a 28 prescribed course of treatment is a relevant factor in assessing 4 1 credibility. See Smolen, 80 F.3d at 1284. However, an ALJ must not draw 2 any inferences about an individual s symptoms and their functional 3 effects from a failure to seek or pursue regular medical treatment 4 without first considering any explanations that the individual may 5 provide. Social Security Ruling ( SSR ) 96-7p. 6 At the hearing, Plaintiff explained that he did not seek treatment 7 from a rheumatologist, as he could not afford to pay for such services. 8 (AR at 37-38). Plaintiff correctly notes that the denial of disability 9 benefits cannot be based on a claimant s failure to obtain treatment 10 where the claimant cannot afford treatment. Orn v. Astrue, 495 F.3d 625, 11 638 (9th Cir. 2007); Smolen, 80 F.3d at 1284. 12 Plaintiff s failure to obtain psychiatric treatment was also not a 13 clear and convincing reason for rejecting Plaintiff s credibility. 14 Plaintiff testified that he understood that services were available at 15 La Puente Mental Health at no charge. (AR at 38). He also claimed that 16 he called about psychiatric treatment. (AR at 38). Just as Plaintiff was 17 describing his conversation with La Puente Mental Health, the ALJ 18 interrupted Plaintiff s testimony with another question. (AR at 38). 19 Plaintiff was never given the opportunity to explain why he had not 20 pursued psychiatric treatment. (AR at 38). By cutting Plaintiff s 21 testimony short, the ALJ failed to develop the record and improperly 22 drew 23 treatment. See SSR 96-7p. a negative inference from Plaintiff s lack of psychiatric 24 The ALJ also discredited Plaintiff s subjective symptom testimony 25 as unsupported by the objective medical evidence. (AR at 18-19). 26 Although objective medical evidence is generally considered a relevant 27 factor 28 disabling effects, fibromyalgia eludes such measurement. See Benecke in determining the severity 5 of a claimant s pain and its 1 v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (citation omitted). 2 Fibromyalgia is diagnosed entirely on the basis of patients reports of 3 pain and other symptoms. Id. at 590. In such cases, the absence of 4 abnormal test results or other discernible symptoms does not undermine 5 claims of fibromyalgia. See Benecke, 379 F.3d at 590 (providing that to 6 date there are no laboratory tests to confirm [fibromyalgia] ); Sarchet 7 v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). Consequently, the lack of 8 objective medical findings cannot serve as a basis for discounting 9 Plaintiff s subjective symptom testimony. 10 11 12 IV. Conclusion As a general rule, remand is warranted where additional 13 administrative proceedings could remedy defects in the Commissioner's 14 decision. See INS v. Ventura, 537 U.S. 12, 16 (2002) ( the proper 15 course, except in rare circumstances, is to remand to the agency for 16 additional investigation or explanation (citations and quotations 17 omitted)); Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In this 18 case, the ALJ not only failed to state adequate reasons for rejecting 19 Plaintiff s subjective claims, but he also failed to appropriately 20 develop the record regarding Plaintiff s failure to seek psychiatric 21 treatment. As additional issues remain to be addressed, remand is 22 appropriate. 23 for further proceedings consistent with this Memorandum Opinion. 24 DATED: Accordingly, it is ordered that this matter be remanded December 16, 2011 25 26 27 28 ______________________________ MARC L. GOLDMAN United States Magistrate Judge

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