Judy Tate v. Michael J Astrue, No. 2:2012cv03557 - Document 14 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: Plaintiff Judy Tate seeks judicial review of the Commissioner's final decision denying her application for disability insurance benefits (DIB). For the reasons stated below, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion. (See document for details.) (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 JUDY TATE, 10 Plaintiff, 11 12 13 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-3557-MLG MEMORANDUM OPINION AND ORDER 16 17 18 Plaintiff Judy Tate seeks judicial review of the Commissioner s 19 final decision denying her application for disability insurance benefits 20 ( DIB ). 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 February 11, 1955, and was 53 years old at 26 the time she filed her application for benefits. (Administrative Record 27 ( AR ) at 100, 132.) She completed two years of college and has relevant 28 work experience in various positions in a senior citizen s community, as 1 1 well as positions as a limousine driver, hotel front desk clerk and 2 retail sales clerk. (AR at 138, 141.) Plaintiff filed her benefits 3 application on February 25, 2008, alleging disability beginning March 4 15, 2005, due to carpal tunnel syndrome and impairments of the neck, low 5 back, shoulder and bilateral knee. (AR at 33, 137.) 6 Plaintiff s application was denied initially on April 23, 2008, and 7 upon reconsideration on June 25, 2008. (AR at 102-105, 107-111.) An 8 administrative 9 Administrative Law Judge ( ALJ ) Mary Everstine. Plaintiff, represented 10 by counsel, testified, as did a Vocational Expert ( VE ). (AR at 81-99.) 11 On October 8, 2009, the ALJ issued an unfavorable decision. (AR at 12 28-37.) She found that Plaintiff had not engaged in substantial gainful 13 activity since the disability onset date. (AR at 33.) The ALJ further 14 found that the medical evidence established that Plaintiff suffered from 15 the 16 bulging and spondyloarthritic changes, cervical spine; degenerative 17 changes, bilateral knees; and mild carpal tunnel syndrome. (Id.) following hearing severe was held impairments: on August degenerative 25, disc 2009, before disease, disc 18 However, the ALJ determined that Plaintiff s impairments did not 19 meet, or were not medically equal to, one of the listed impairments in 20 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 35.) The ALJ 21 determined that Plaintiff retained the residual functional capacity 22 ( RFC ) to perform light work as defined in 20 C.F.R. 404.1567(b) 23 except further limited to only: occasional climbing, stooping, kneeling, 24 crouching, and crawling; occasional above the shoulder reaching; and no 25 power gripping or grasping. (Id.) The ALJ found that Plaintiff was 26 capable of performing her past relevant work as an activities director. 27 (AR at 36.) Therefore, the ALJ concluded that Plaintiff was not disabled 28 within the meaning of the Social 2 Security Act. See 20 C.F.R. § 1 416.920(f). (Id.) 2 On June 17, 2011, the Appeals Council denied review. However, on 3 February 28, 2012, the Appeals Council set aside its earlier decision 4 but again denied review. (AR at 1-4.) Plaintiff then timely commenced 5 this action for judicial review. On September 10, 2012, the parties 6 filed a Joint Stipulation ( Joint Stip. ) of disputed facts and issues. 7 Plaintiff contends that the ALJ erred by: (1) improperly evaluating 8 Plaintiff s RFC and her ability to perform her past relevant work at 9 step 4 of the sequential process; (2) improperly rejecting the opinion 10 of Plaintiff s treating physician; (3) failing to properly determine at 11 step 12 impairment; and (4) failing to perform a proper credibility analysis. 13 (Joint Stip. at 4.) Plaintiff seeks reversal of the Commissioner s 14 denial 15 alternative, remand for a new administrative hearing. (Joint Stip. at 16 52.) The Commissioner requests that the ALJ s decision be affirmed. 17 (Joint Stip. at 52-53.) 3 whether of her Plaintiff s applications impairments and payment met of or equaled benefits a or, listed in the 18 After reviewing the parties respective contentions and the record 19 as a whole, the Court finds Plaintiff s contention regarding the ALJ s 20 failure to properly evaluate Plaintiff s credibility to be meritorious 21 and remands this matter for further proceedings consistent with this 22 opinion.1 23 24 25 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 27 decision must be upheld unless the ALJ s findings are based on legal 28 1 The Court does not reach the remaining claims of error and will not decide whether these issues would independently warrant relief. Upon remand, the ALJ may wish to consider the other issues raised by Plaintiff. 3 1 error or are not supported by substantial evidence in the record as a 2 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 3 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 4 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 5 such evidence as a reasonable person might accept as adequate to support 6 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 7 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 8 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 9 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 10 evidence supports a finding, the reviewing court must review the 11 administrative record as a whole, weighing both the evidence that 12 supports 13 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 14 the evidence can support either affirming or reversing the ALJ s 15 conclusion, the reviewing court may not substitute its judgment for 16 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 17 18 III. Discussion 19 Plaintiff contends that the ALJ erred by failing to provide clear 20 and convincing reasons for discounting Plaintiff s subjective symptom 21 testimony. (Joint Stip. at 45.) To determine whether a claimant s 22 testimony about subjective pain or symptoms is credible, an ALJ must 23 engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th 24 Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th 25 Cir. 2007)). First, the ALJ must determine whether the claimant has 26 presented objective medical evidence of an underlying impairment which 27 could reasonably be expected to produce the alleged pain or other 28 symptoms. Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces 4 1 objective medical evidence of an underlying impairment, an adjudicator 2 may not reject a claimant s subjective complaints based solely on a lack 3 of objective medical evidence to fully corroborate the alleged severity 4 of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en 5 banc). 6 limitations 7 consistent with the objective medical evidence and other evidence in the 8 case, the claimant s allegations will be credited. SSR 96-7p, 1996 WL 9 374186 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).2 10 Unless there is affirmative evidence showing that the claimant is 11 malingering, the ALJ must provide specific, clear and convincing reasons 12 for discrediting a claimant s complaints. Robbins, 466 F.3d at 883. 13 General findings are insufficient; rather, the ALJ must identify what 14 testimony is not credible and what evidence undermines the claimant s 15 complaints. Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 16 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant s work 17 record, 18 knowledge of claimant s limitations, aggravating factors, 19 restrictions 20 claimant s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & 21 n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to 22 seek treatment or follow a prescribed course of treatment and employ 23 other ordinary techniques of credibility evaluation. Id. (citations 24 omitted). To the and extent that restrictions observations caused of by an individual s due medical to of functional pain is reasonably alleged providers symptoms, claims effects and of third parties with functional medication, and the 25 26 27 28 2 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 Plaintiff testified at the administrative hearing to the following 2 symptoms and functional limitations: she cannot sit and/or stand for 3 longer than 45 minutes to one hour due to pain in her lower back; she 4 cannot lift more than 15 pounds; she has constant pain in her back, 5 neck, knee, and hand; she has severe pain which requires her to stay in 6 bed usually between one and four days per week. (AR at 89-94.) 7 The ALJ found that Plaintiff s medical impairments could reasonably 8 be expected to produce the alleged symptoms. (AR at 36.) The ALJ was 9 therefore required to provide specific, clear and convincing reasons for 10 rejecting Plaintiff s subjective allegations of pain and functional 11 limitations. 12 Plaintiff s testimony not fully credible: 13 The ALJ provided the following reasons for finding While the claimant seemed very sincere at the hearing, 14 there 15 severity of the limitations alleged. is no objective evidence which would support the 16 In terms of the claimant s alleged disabling pain, it is 17 notable that the claimant is not taking any prescription 18 opiates or narcotics for her pain. (Citing AR at 185.) Office 19 visit records also show that the claimant was last prescribed 20 Vicodin for knee pain in July 2008. (Citing AR at 328.) After 21 that time, the treatment records on a whole show that the 22 claimant s 23 infrequently visited her physician and reported that she was 24 doing well. (Citing AR at 302.) 25 symptoms appeared to be in control, as she (AR at 36.) 26 The reasons put forth by the ALJ for discrediting Plaintiff s 27 testimony are not supported by substantial evidence in the record. 28 First, the ALJ s finding that there is no objective medical evidence 6 1 corroborating Plaintiff s subjective pain testimony is not, without 2 more, a sufficient reason for discrediting Plaintiff. See Burch v. 3 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (noting that lack of 4 medical evidence cannot form the sole basis for discounting pain 5 testimony ). Although the medical evidence is a relevant factor in 6 determining the severity of the claimant s pain and its disabling 7 effects, once a claimant produces objective medical evidence of an 8 underlying impairment, an ALJ may not reject a claimant s subjective 9 complaints based solely on lack of objective medical evidence to fully 10 corroborate the alleged severity of pain. Rollins v. Massanari, 261 11 F.3d 853, 856-57 (9th Cir. 2001). 12 The other reasons given by the ALJ for discrediting Plaintiff s 13 subjective symptom testimony - she was not taking any prescription 14 opiates or narcotics for her pain, she was last prescribed Vicodin in 15 July of 2008, and she reported doing well - are undermined by the 16 medical evidence which Plaintiff later submitted to the Appeals Council. 17 After the administrative hearing, Plaintiff submitted medical records 18 from Santa Barbara County Public Health and other medical providers (AR 19 at 388-468) to the Appeals Council, which considered the records and 20 found that this information [did] not provide a basis for changing the 21 Administrative Law Judge s decision. (AR at 1-6.) 22 The Ninth Circuit Court of Appeals recently held that a district 23 court 24 determining whether the ALJ s decision was supported by substantial 25 evidence and free from legal error. See Brewes v. Comm r of Soc. Sec. 26 Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen the Appeals Council 27 considers new evidence in deciding whether to review a decision of the 28 ALJ, that evidence becomes part of the administrative record, which the must consider evidence reviewed 7 by the Appeals Council in 1 district court must consider when reviewing the Commissioner s final 2 decision for substantial evidence. ). The Brewes Court also determined 3 that a plaintiff is not required to demonstrate that these new medical 4 records meet the materiality standard of 42 U.S.C. § 405(g)3 because that 5 standard 6 administrative record and that is presented in the first instance to the 7 district 8 considered by the Appeals Council is not new but rather part of the 9 administrative record properly before the district court. Id. 10 applies court. only Id. to at new 1164. evidence Rather, that is evidence not part submitted of to the and Here, the evidence provided to the Appeals Council after the 11 administrative 12 Plaintiff not fully credible. As noted by Plaintiff, the records show 13 that, contrary to the ALJ s finding, Plaintiff was prescribed Vicodin 14 for pain after July 2008. (See AR at 390, 403, 407, 410.) Plaintiff was 15 also prescribed Flexeril (AR at 401, 409, 410) and Salsalate.4 (AR at 16 409, 422.) As Plaintiff also notes, the ALJ s conclusion that Plaintiff 17 was doing well since July 2008 is belied by the medical records 18 submitted to the Appeals Council, which show Plaintiff consistently 19 complaining of neck and back pain for which she had multi-level fusion 20 surgery in November 2010. hearing contradicts the ALJ s reasons for finding 21 22 23 24 25 26 27 28 3 Section 405(g) provides in relevant part as follows: The [district] court may ... at any time order additional evidence to be taken before the Commissioner, ... but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. 4 Flexeril is used to relax muscles and relieve pain and discomfort caused by strains and other muscle injuries. Salsalate is used to relieve pain, tenderness, swelling and stiffness caused by rheumatoid arthritis, osteoarthritis, and other conditions that cause swelling. http://www.nlm.nih.gov. 8 1 In support of the argument that the ALJ properly addressed 2 Plaintiff s subjective complaints, the Commissioner points to other 3 evidence 4 statements. For example, the Commissioner argues that the ALJ noted at 5 various points in the hearing decision that Plaintiff was injured at 6 work in 2003 but continued to work until 2005; that she had relatively 7 conservative treatment, primarily consisting of medication refills; that 8 she did not go to physical therapy because she did not have a car; and 9 that she missed various medical appointments. (Joint Stip. at 48-49, in the record which allegedly discredits Plaintiff s 10 citing 11 sufficient 12 complaints, the ALJ did not clearly and explicitly rely on these facts 13 in support of her credibility determination. It would be error for this 14 Court to affirm the ALJ s decision based upon reasons that the ALJ did 15 not discuss. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 16 AR at 33-35.) reasons Therefore, in However, for the light even ALJ of the to assuming reject evidence that these Plaintiff s before the would be subjective ALJ and the 17 additional evidence submitted to the Appeals Council, the Court cannot 18 conclude that the ALJ s credibility determination is supported by 19 substantial evidence, or that any error was harmless. 20 21 IV. Conclusion 22 The decision whether to remand for further proceedings is within 23 this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 24 Cir. 25 administrative 26 developed, it is appropriate to exercise this discretion to direct an 27 immediate award of benefits. Id. at 1179 ( [T]he decision of whether to 28 remand for further proceedings turns upon the likely utility of such 2000). Where no useful proceedings, or purpose where 9 would the be served record has by been further fully 1 proceedings. ); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 2 However, where there are outstanding issues that must be resolved before 3 a determination of disability can be made, and it is not clear from the 4 record that the ALJ would be required to find the claimant disabled if 5 all 6 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also 7 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remanding case 8 for reconsideration of credibility determination). the evidence were properly evaluated, remand is appropriate. 9 Here, the ALJ did not review and evaluate the medical evidence 10 submitted by Plaintiff to the Appeals Council after the administrative 11 hearing when assessing Plaintiff s credibility. Accordingly, the case is 12 remanded for further proceedings consistent with this opinion and order. 13 14 DATED: September 18, 2012 15 16 17 ______________________________ Marc L. Goldman United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 10
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