Adrienne L Dixon v. Michael J Astrue, No. 2:2012cv03491 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman.Accordingly, the case is remanded for further proceedings consistent with this opinion and order. (twdb)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 ADRIENNE L. DIXON, Plaintiff, 10 v. 11 12 13 ) ) ) ) ) ) ) ) ) ) ) ) ) MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 Case No. CV 12-3491-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Adrienne Dixon seeks judicial review of the 18 Commissioner s final decision denying her application for disability 19 insurance benefits ( DIB ) and Supplemental Security Income ( SSI ) 20 benefits. For the reasons stated below, the decision of the Commissioner 21 is 22 consistent with this opinion. reversed, and the matter is remanded for further proceedings 23 24 I. Background 25 Plaintiff was born on January 14, 1973, and was 36 years old at the 26 time she filed her application for benefits. (Administrative Record 27 ( AR ) at 179.) She has a high school education and has relevant work 28 experience as a special education 1 assistant, customer service 1 representative and telemarketer. (AR at 185, 189.) Plaintiff filed her 2 benefits 3 beginning December 20, 2006, due to left ankle pain, hypertension and 4 diabetes. (AR at 102, 103.) applications on September 21, 2009, alleging disability 5 Plaintiff s applications were denied initially on December 17, 6 2009, and upon reconsideration on February 12, 2010. (AR at 105-109, 7 114-118.) An administrative hearing was held on October 25, 2010, before 8 Administrative 9 represented by counsel, testified, as did a medical expert and a 10 vocational expert. (AR at 54-96.) On November 24, 2010, the ALJ issued 11 an unfavorable decision. (AR at 21-36.) She found that Plaintiff had not 12 engaged in substantial gainful activity since the disability onset date. 13 (AR at 26.) The ALJ further found that the medical evidence established 14 that Plaintiff suffered from the following severe impairments: history 15 of left ankle pain with occasional edema, osteoarthritis of the left 16 shoulder, diabetes mellitus, and obesity. (Id.) Law Judge ( ALJ ) Ariel L. Sotolongo. Plaintiff, 17 The ALJ determined that Plaintiff s impairments did not meet, or 18 were not medically equal to, one of the listed impairments in 20 C.F.R., 19 Part 404, Subpart P, Appendix 1. (AR at 29.) The ALJ further found that 20 Plaintiff retained the residual functional capacity ( RFC ) to perform 21 sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) with 22 the following exceptions: 23 The claimant can lift and carry up to 20 pounds occasionally 24 and 10 pounds frequently; stand and walk up to 2 hours in an 25 8-hour day; and sit up to 6 hours in an 8-hour day. She is 26 limited to occasional postural activities, except that she can 27 never climb ropes, ladders, or scaffolds and she must avoid 28 rough/uneven terrain. She is 2 also limited to occasional 1 overhead reaching, pushing, and pulling with the left upper 2 extremity. Furthermore, the claimant must avoid hazards such 3 as unprotected heights or dangerous machinery. 4 (AR at 29-30.) 5 performing her past relevant work as a receptionist and telemarketer. 6 (AR at 32.) Therefore, the ALJ concluded that Plaintiff was not disabled 7 within 8 416.920(f). (AR at 33.) the The meaning ALJ of determined the Social that Plaintiff Security Act. was See capable 20 of C.F.R. § 9 On February 29, 2012, the Appeals Council denied review. (AR at 1- 10 6.) Plaintiff then timely commenced this action for judicial review. On 11 October 5, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 12 of disputed facts and issues. Plaintiff contends that the ALJ erred by 13 failing to perform a proper credibility analysis. (Joint Stip. at 4.) 14 Plaintiff 15 applications and payment of benefits or, in the alternative, remand for 16 a new administrative hearing. (Joint Stip. at 17.) The Commissioner 17 requests that the ALJ s decision be affirmed. (Joint Stip. at 18.) seeks reversal of the Commissioner s denial of her 18 After reviewing the parties contentions and the record as a whole, 19 the Court finds Plaintiff s contention regarding the ALJ s failure to 20 properly evaluate Plaintiff s credibility to be meritorious and remands 21 this matter for further proceedings consistent with this opinion. 22 23 24 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 26 decision must be upheld unless the ALJ s findings are based on legal 27 error or are not supported by substantial evidence in the record as a 28 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 3 1 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 2 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 3 such evidence as a reasonable person might accept as adequate to support 4 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 5 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 6 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 7 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 8 evidence supports a finding, the reviewing court must review the 9 administrative record as a whole, weighing both the evidence that 10 supports 11 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 12 the evidence can support either affirming or reversing the ALJ s 13 conclusion, the reviewing court may not substitute its judgment for 14 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 15 16 III. Discussion 17 Plaintiff contends that the ALJ erred by failing to provide clear 18 and convincing reasons for discounting her subjective symptom testimony. 19 (Joint Stip. at 4.) To determine whether a claimant s testimony about 20 subjective pain or symptoms is credible, an ALJ must engage in a two- 21 step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 22 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 23 First, the ALJ must determine whether the claimant has presented 24 objective medical evidence of an underlying impairment which could 25 reasonably be expected to produce the alleged pain or other symptoms. 26 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces objective 27 medical evidence of an underlying impairment, an adjudicator may not 28 reject a claimant s subjective complaints based solely on a lack of 4 1 objective medical evidence to fully corroborate the alleged severity of 2 pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 3 To the extent that an individual s claims of functional limitations and 4 restrictions due to alleged pain is reasonably consistent with the 5 objective 6 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 7 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).1 medical evidence and other evidence in the case, the 8 Unless there is affirmative evidence showing that the claimant is 9 malingering, the ALJ must provide specific, clear and convincing reasons 10 for discrediting a claimant s complaints. Robbins, 466 F.3d at 883. 11 General findings are insufficient; rather, the ALJ must identify what 12 testimony is not credible and what evidence undermines the claimant s 13 complaints. Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 14 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant s work 15 record, 16 knowledge of claimant s limitations, aggravating factors, 17 restrictions 18 claimant s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & 19 n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to 20 seek treatment or follow a prescribed course of treatment and employ 21 other ordinary techniques of credibility evaluation. Id. (citations 22 omitted). observations caused of by medical providers symptoms, effects and of third parties with functional medication, and the 23 Plaintiff testified at the administrative hearing to the following 24 symptoms and functional limitations: she has swelling and pain in her 25 26 27 28 1 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 5 1 left foot and ankle, which makes it difficult for her to sit or stand 2 for more than 30 to 45 minutes; she has had surgery twice on her left 3 shoulder and still has constant pain; she has fibroid tumors which cause 4 her to bleed 25 days per month; she was hospitalized twice for pulmonary 5 embolisms which made it difficult for her to breathe; and she has 6 anxiety attacks approximately once or twice per week for which she is 7 taking anti-anxiety medication. (AR at 60-80.) 8 The ALJ found that Plaintiff s medical impairments could reasonably 9 be expected to produce the alleged symptoms. (AR at 30.) The ALJ was 10 therefore required to provide specific, clear and convincing reasons for 11 rejecting Plaintiff s subjective allegations of pain and functional 12 limitations. 13 Plaintiff s testimony not fully credible: The ALJ provided the following reasons for finding 14 Finally, I do not fully credit the testimony and allegations 15 of the claimant. As discussed above, the record reveals that 16 the claimant s impairments are not as severe as she alleges. 17 Indeed, although the claimant testified that she periodically 18 uses a cane, the record provides no indication that such a 19 cane is necessary for ambulation. Furthermore, although the 20 claimant testified that she is undergoing treatment for her 21 anxiety, she did not provide any evidence of this treatment. 22 (AR at 32.) 23 The reasons put forth by the ALJ for discrediting Plaintiff s 24 testimony are not supported by substantial evidence in the record. 25 First, the ALJ s finding that there is no objective medical evidence 26 corroborating Plaintiff s subjective pain testimony is not, without 27 more, a sufficient reason for discrediting Plaintiff. See Burch v. 28 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (noting that lack of 6 1 medical evidence cannot form the sole basis for discounting pain 2 testimony ). Although the medical evidence is a relevant factor in 3 determining the severity of the claimant s pain and its disabling 4 effects, once a claimant produces objective medical evidence of an 5 underlying impairment, an ALJ may not reject a claimant s subjective 6 complaints based solely on lack of objective medical evidence to fully 7 corroborate the alleged severity of pain. Rollins v. Massanari, 261 8 F.3d 853, 856-57 (9th Cir. 2001). 9 The other reasons given by the ALJ for discrediting Plaintiff s 10 subjective symptom testimony are also not supported by substantial 11 evidence 12 approximately four to six times per month when her left ankle swells to 13 avoid putting weight and pressure on the ankle. (AR at 79-80.) It is 14 unclear how the mere fact that Plaintiff chooses to occasionally use a 15 cane 16 requirement that a cane must be prescribed by a doctor nor is there any 17 mention in the medical records that Plaintiff s physicians believed that 18 the use of a cane was unnecessary or deleterious. (AR at 1-6.) Contrary 19 to the Commissioner s contention (Joint Stip. at 14), the fact that she 20 did not happen to use a cane on the dates of her physical examinations 21 is not necessarily inconsistent with her claims of needing to use a cane 22 only periodically when her ankle swelled. in the undermines record. her Claimant credibility. testified There is that she certainly uses no a cane medical 23 In addition, there is evidence in the record that Plaintiff is 24 being treated for her anxiety. Plaintiff was prescribed Lorazepam2 for 25 her anxiety. (AR at 439-40, 449, 452-53, 461, 465, 477-78, 480-81.) As 26 for the ALJ s statement that there was no evidence that Plaintiff was 27 2 28 Lorazepam, the generic form of Ativan, is a benzodiazepine used to relieve anxiety. <www.nlm.nih.gov.> 7 1 seeing a psychologist or therapist for her anxiety, Plaintiff testified 2 that she had been trying to obtain therapy from her providers at Kaiser 3 but that they would not accept Medi-Cal for therapy. (AR at 70.) She 4 further testified that they were referring her to someone else, who 5 might accept Medi-Cal for therapy services. (Id.) Thus, it is clear from 6 reading 7 discrepancy between her testimony and the medical records. 8 9 Plaintiff s In support of comments the in context argument that that the ALJ there is properly no real addressed Plaintiff s subjective complaints, the Commissioner points to other 10 evidence 11 statements. The Commissioner argues that the ALJ noted that Plaintiff 12 was not entirely compliant with her diabetes treatment regimen. (Joint 13 Stip. 14 contention, 15 noncompliant with her diabetes treatment but that her diabetes had been 16 characterized as uncontrolled on several occasions. (AR at 27.) It is 17 unclear from this reference whether Plaintiff s diabetes was considered 18 uncontrolled 19 However, even assuming that this would be a sufficient reason for the 20 ALJ to reject Plaintiff s subjective complaints, the ALJ did not clearly 21 and explicitly rely on Plaintiff s alleged non-compliance in support of 22 her credibility determination. It would be error for this Court to 23 affirm the ALJ s decision based upon reasons that the ALJ did not 24 discuss. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). at in the 14, record citing the ALJ based AR did upon which allegedly at 27.) not explicitly her discredits Contrary to the state that non-compliance with Plaintiff s Commissioner s Plaintiff her was medication. 25 In sum, the reasons given by the ALJ were not supported by 26 substantial evidence in the record and were therefore insufficient to 27 reject 28 limitations. Plaintiff s testimony regarding 8 her symptoms and related 1 IV. Conclusion 2 The decision whether to remand for further proceedings is within 3 this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 4 Cir. 5 administrative 6 developed, it is appropriate to exercise this discretion to direct an 7 immediate award of benefits. Id. at 1179 ( [T]he decision of whether to 8 remand for further proceedings turns upon the likely utility of such 9 proceedings. ); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 10 However, where there are outstanding issues that must be resolved before 11 a determination of disability can be made, and it is not clear from the 12 record that the ALJ would be required to find the claimant disabled if 13 all 14 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also 15 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remanding case 16 for reconsideration of credibility determination). 2000). the Where no useful proceedings, evidence were purpose or properly where would the evaluated, be served record remand has is by further been fully appropriate. 17 Here, the ALJ failed to explain with sufficient specificity the 18 basis for her determination that Plaintiff was not fully credible 19 regarding the intensity, persistence, and limiting effects of her 20 symptoms. A more complete analysis is required. Accordingly, the case is 21 remanded for further proceedings consistent with this opinion and order. 22 DATED: October 19, 2012 23 24 25 ______________________________ Marc L. Goldman United States Magistrate Judge 26 27 28 9
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