Nicole Muldoon v. Carolyn W. Colvin, No. 2:2013cv05188 - Document 28 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the action is REMANDED for further proceedings consistent with this opinion. (twdb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 NICOLE MULDOON, Plaintiff, 12 13 14 15 16 17 18 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No. CV 13-5188-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) Plaintiff Nicole Muldoon ( Plaintiff ) appeals from the decision of the 19 Administrative Law Judge ( ALJ ) denying her application for Social Security 20 Disability Insurance benefits. Because the ALJ did not provide legitimate clear 21 and convincing reasons for discrediting Plaintiff s subjective complaints, the 22 ALJ s decision is reversed and the matter is remanded for further proceedings. 23 I. 24 FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff filed her application for benefits on June 25, 2010, alleging 26 disability beginning August 27, 2009. Administrative Record ( AR ) 18. The 27 ALJ found that Plaintiff had the following severe impairments: degenerative 28 disc disease (with canal stenosis) and degenerative joint disease of the 1 lumbosacral spine; chronic active ulcerative colitis (status post colectomy and 2 end ileostomy on May 9, 2010) and laparotomy with adhesiolysis, small bowel 3 resection, salpingo-oophorectomy and proctoscopy on August 25, 2010; 4 obesity; anxiety disorder; and depressive disorder. AR 20. The ALJ found that 5 notwithstanding these impairments, Plaintiff retained the residual functional 6 capacity to perform sedentary work with certain additional limitations, most 7 notably that she be limited to simple tasks with no public contact. AR 23. The 8 ALJ found that Plaintiff s limitations left her unable to perform her past 9 relevant work. AR 29. Based on the testimony of a vocational expert ( VE ), 10 the ALJ found that Plaintiff remained capable of performing work available in 11 significant numbers in the national and regional economy. AR 30. On that 12 basis, the ALJ concluded that Plaintiff was not disabled. Id. 13 II. 14 ISSUES PRESENTED 15 The parties dispute whether the ALJ erred in: (1) failing to give proper 16 weight to the opinions of Plaintiff s treating physicians; (2) assessing Plaintiff s 17 credibility; and (3) finding that Plaintiff could perform other work at step five 18 of the sequential evaluation because the number of jobs identified by the VE 19 was low. See Joint Stipulation ( JS ) at 4. 20 III. 21 STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. The ALJ s findings and decision 24 should be upheld if they are free from legal error and are supported by 25 substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); 26 Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 27 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as 28 a reasonable person might accept as adequate to support a conclusion. 2 1 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 2 Cir. 2007). It is more than a mere scintilla, but less than a preponderance. 3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 4 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports 5 a finding, the reviewing court must review the administrative record as a 6 whole, weighing both the evidence that supports and the evidence that detracts 7 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 8 (9th Cir. 1998). If the evidence can reasonably support either affirming or 9 reversing, the reviewing court may not substitute its judgment for that of 10 the Commissioner. Id. at 720-21. 11 IV. 12 DISCUSSION 13 A. The ALJ Did Not Offer Clear and Convincing Reasons for 14 Discrediting Plaintiff s Credibility 15 Plaintiff contends that the ALJ erred in determining that Plaintiff was 16 not fully credible. JS at 14-20. Plaintiff testified to the following subjective 17 symptoms and limitations: she had sharp back pain due to a strained lumbar; 18 she had complications from her colon removal surgery, which included post- 19 surgery pelvic pain, increased difficulty walking, bending, and lifting, and the 20 need to empty her ileostomy bag at least 10 to 12 times per day; and, as a result 21 of her physical impairments, she was being treated for depression and anxiety. 22 See AR 56-81. 23 To determine whether a claimant s testimony about subjective pain or 24 symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v. 25 Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (citing Lingenfelter, 504 F.3d at 26 1035-36). First, the ALJ must determine whether the claimant has presented 27 objective medical evidence of an underlying impairment which could 28 reasonably be expected to produce the alleged pain or other symptoms. 3 1 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces objective 2 medical evidence of an underlying impairment, an adjudicator may not reject a 3 claimant s subjective complaints based solely on a lack of objective medical 4 evidence to fully corroborate the alleged severity of pain. Bunnell v. Sullivan, 5 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the extent that an individual s 6 claims of functional limitations and restrictions due to alleged pain are 7 reasonably consistent with the objective medical evidence and other evidence, 8 the claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 9 (explaining 20 C.F.R. § 404.1529(c)(4)). 10 If the claimant meets the first step and there is no affirmative evidence of 11 malingering, the ALJ must provide specific, clear and convincing reasons for 12 discrediting a claimant s complaints. Robbins, 466 F.3d at 883. General 13 findings are insufficient; rather, the ALJ must identify what testimony is not 14 credible and what evidence undermines the claimant s complaints. Reddick, 15 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 16 The ALJ must consider a claimant s work record, observations of medical 17 providers, and third parties with knowledge of claimant s limitations, 18 aggravating factors, functional restrictions caused by symptoms, effects of 19 medication, and the claimant s daily activities. Smolen, 80 F.3d 1273, 1284 & 20 n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to seek 21 treatment or follow a prescribed course of treatment and employ other 22 ordinary techniques of credibility evaluation. Id. at 1284. 23 One of the primary reasons the ALJ found Plaintiff not fully credible 24 involved her failure to lose weight when advised by her doctor to do so. AR 25 25-26. The ALJ recounted the fact that Plaintiff s doctor advised her that she 26 must lose weight before her ileostomy could be reversed and then reviewed her 27 failed efforts to lose weight. AR 25. The ALJ then concluded, [t]o the extent 28 that the claimant relies on the presence of the ileostomy as preventing work, I 4 1 question her failure to persist with weight reduction to allow for surgical 2 revision. AR 25-26. After expressly stating that he was not denying Plaintiff s 3 disability claim for non-compliance, the ALJ continued to criticize Plaintiff for 4 failing to lose weight: She could have taken action likely to cure or relieve the 5 alleged symptoms but did not do so. Consequently, the poor compliance with 6 treatment suggests that her symptoms are not as disabling as alleged and 7 further supports the residual functional capacity given above. AR 26. Although, as noted above, failure to follow prescribed treatment is 8 9 generally a proper basis for an adverse credibility determination, the Ninth 10 Circuit has held that an obese claimant s failure to follow her doctor s 11 recommendation to lose weight, as opposed to her failure to follow prescribed 12 treatment, may not be used to support an adverse credibility determination. 13 See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) ( [T]he failure to follow 14 treatment for obesity tells us little or nothing about a claimant s credibility. ). 15 Recognizing that treatment for obesity is often unsuccessful, the 16 Commissioner s policy guidelines and Ninth Circuit law limit an ALJ s ability 17 to use a claimant s failure to lose weight as a ground for denying benefits or 18 making an adverse credibility finding. See SSR 02-1p, 2002 WL 34686281, at 19 *9 (stating that the Commissioner will rarely use failure to follow prescribed 20 treatment for obesity to deny or cease benefits ); Orn, 495 F.3d at 636-638 21 (holding that ALJ ignored SSR 02-1p and misapplied Ninth Circuit law in 22 using claimant's failure to lose weight as a reason for rejecting subjective 23 testimony). Before failure to follow prescribed treatment for obesity can 24 become an issue in a case, the Commissioner must first find that the 25 individual is disabled because of obesity or a combination of obesity and 26 another impairment(s). SSR 02-01p, 2002 WL 34686281, at *8 (emphasis 27 added). 28 /// 5 Even if a finding of disability is made based in whole or in part on a 1 2 claimant s obesity, the Commissioner will find that a claimant has failed to 3 follow prescribed treatment for obesity, and therefore is not eligible to receive 4 benefits, only if all of the following criteria are met: (1) a treating source has 5 prescribed treatment for obesity, (2) the treatment is clearly expected to 6 restore the ability to engage in [substantial gainful activity], (3) the 7 individual is not following the prescribed treatment, and (4) the individual 8 does not have a good reason for not following the prescribed treatment. SSR 9 02-1p, 2002 WL 34686281, at *9; see 20 C.F.R. § 404.1530 (regulations 10 regarding the need to follow prescribed treatment). The ALJ did not find Plaintiff disabled. Therefore, it was error for the 11 12 ALJ to take into account Plaintiff s failure to follow medical advice to lose 13 weight in denying benefits. See Orn, 495 F.3d at 636 (holding that the ALJ 14 committed reversible error in finding that the plaintiff s failure to lose weight 15 detracted from his credibility and supported a finding of nondisability because 16 SSR 02 01p preclude[d] the ALJ from considering the effect of any failure to 17 follow treatment for obesity unless the claimant was found disabled). 18 Although the ALJ stated that he was not denying the claim based on non- 19 compliance, the ALJ s opinion makes clear that he was relying heavily upon 20 Plaintiff s failure to lose weight as a reason for discrediting her testimony 21 generally, and specifically her testimony about her ileostomy bag. See AR 25- 22 26. 23 24 The ALJ also relied upon Plaintiff s activities of daily living in finding her not fully credible as follows: 25 As noted above . . . the claimant stated that she was able to tend to 26 her personal care needs, prepare her own meals, and do laundry 27 with some help. She also tries to take care of her mother, who has 28 Parkinson s disease, socializes, and attends church. In addition, 6 1 she continues to be able to drive, handle money, and go places 2 without the need for reminders. In short, the claimant s activities 3 tend to show that she does have the ability to perform basic work 4 activities. When, as here, the claimant is able to spend a 5 substantial part of the day in activities involving the performance 6 of functions readily transferable to competitive work, I am entitled 7 to give less weight to allegations of disabling impairment. 8 9 AR 27. With respect to daily activities, the Ninth Circuit has held that if a 10 claimant is able to spend a substantial part of [her] day engaged in pursuits 11 involving the performance of physical functions that are transferable to a work 12 setting, a specific finding as to this fact may be sufficient to discredit a 13 claimant s allegations. Morgan v. Commissioner, 169 F.3d 595, 600 (9th Cir. 14 1999). However, the mere fact that a plaintiff has carried on certain daily 15 activities, such as grocery shopping, driving a car, or limited walking for 16 exercise, does not in any way detract from her credibility as to her overall 17 disability. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 18 The ALJ s finding is not supported by substantial evidence. Although 19 Plaintiff did state that she could do some laundry with some help and very 20 little cleaning, she also stated that she could not do household repairs, 21 ironing, or mowing. AR 208. While she stated that she could prepare her own 22 meals, she also described her meal preparation as limited. Id. She indicated 23 that she helped take care of her mother by get[ting] her a glass of water or a 24 frozen dinner. AR 206. At the hearing, she indicated that she would get pills 25 for her mother and help prepare her Meals on Wheels, but that after such 26 efforts she would lie down for 45 minutes to an hour with a heating pad on her 27 back. AR 77. Although she testified that she can drive, she stated that she had 28 only driven herself three times in the last three months due to her pain. AR 7 1 209. The remaining uncontroverted evidence that Plaintiff could attend 2 church once a week, socialize, and handle money is insufficient to support a 3 finding that her daily activities discredit her allegations. Contrary to the ALJ s 4 finding, the overall picture painted by Plaintiff s statements and her testimony 5 is not of someone whose daily activities involve the performance of functions 6 readily transferable to the workplace, and thus Plaintiff s daily activities do not 7 constitute a clear and convincing reason for discounting her credibility. 8 9 Finally, the ALJ also rejected Plaintiff s testimony about the frequency with which she needed to empty her ileostomy bag: 10 I do not accept the claimant s testimony that she needs to empty 11 the ileostomy bag as soon as it contains any excretion and that she 12 is uncomfortable using public restrooms to empty the bag. There is 13 no medical evidence that the bag must be emptied with such 14 frequency, and I cannot accept general discomfort with public 15 restrooms as precluding work. Moreover, the presence of the bag 16 does not preclude the claimant from going to restaurants. If the 17 bag caused this level of maintenance and discomfort, I would 18 anticipate that she would have lost the amount of weight necessary 19 to permit reanastosmosis. 20 21 AR 26 (citations omitted). At a minimum, the Court is skeptical of the ALJ s handling of Plaintiff s 22 testimony regarding her ileostomy bag. Plaintiff testified that she wants to 23 empty her ileostomy bag as soon as it contains any content and that she is 24 uncomfortable emptying her bag in public restrooms due to concerns about 25 privacy and cleanliness. AR 83-85. To the extent the ALJ is suggesting that 26 Plaintiff is being untruthful about those concerns, the Court finds nothing in 27 the record to support such a finding. As the Ninth Circuit has said in a 28 different context, [s]heer disbelief is no substitute for substantial evidence. 8 1 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (holding that ALJ erred 2 in relying on his disbelief of Benecke s symptom testimony ). Moreover, it 3 appears that the ALJ s conclusion is militated at least in part by his conclusion 4 that Plaintiff would have lost weight given her discomfort with the ileostomy 5 bag, a conclusion that is at best tenuous and at worst legal error for the reasons 6 described above. At the same time, the Court does not accept the premise that a 7 8 claimant s subjective discomfort with emptying the bag in a public restroom or 9 preference for emptying the bag more often than necessary serves as a 10 functional limitation. On remand, the Court s concerns about the ALJ s 11 credibility findings with respect to the ileostomy bag should not be read to rule 12 out the possibility that the ALJ may find that Plaintiff s subjective preferences 13 are not a basis for a functional limitation. In sum, the Court concludes that ALJ erred in relying on Plaintiff s 14 15 failure to lose weight as a basis for discounting her credibility. The Court also 16 concludes that the ALJ s finding that Plaintiff s daily activities are sufficient to 17 discredit her subjective testimony is not supported by substantial evidence. 18 Taken together, these two conclusions preclude this Court from finding that 19 the ALJ had specific, clear and convincing reasons for discounting Plaintiff s 20 credibility. Additionally, the Court has reservations about the ALJ s 21 assessment of Plaintiff s testimony about her ileostomy bag. The Court cannot 22 conclude that the above errors were harmless because it cannot confidently 23 conclude that no reasonable ALJ, when fully crediting the testimony, could 24 have reached a different disability determination. Stout v. Comm r, Soc. Sec. 25 Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 26 /// 27 /// 28 /// 9 1 B. A Remand for Further Proceedings Is Appropriate The Court has discretion as to whether to remand for further 2 3 proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 4 Where no useful purpose would be served by further administrative 5 proceedings, or where the record has been fully developed, it is appropriate to 6 exercise this discretion to direct an immediate award of benefits. Benecke v. 7 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also Lingenfelter, 504 F.3d at 8 1041. A remand is appropriate, however, where there are outstanding issues 9 10 that must be resolved before a determination of disability can be made and it is 11 not clear from the record that the ALJ would be required to find the claimant 12 disabled if all the evidence were properly evaluated. Bunnell v. Barnhart, 336 13 F.3d 1112, 1115-16 (9th Cir. 2003); see also Connett v. Barnhart, 340 F.3d 871, 14 876 (9th Cir. 2003). Here, there are outstanding issues that must be resolved 15 before a final determination can be made. The ALJ s failure to properly assess 16 Plaintiff s credibility may have affected the ALJ s residual functional capacity 17 assessment and the finding at step five of the sequential evaluation process that 18 Plaintiff was able to perform other work in the regional and national economy. 19 See, e.g., Ghanim v. Colvin, --- F.3d ---, 2014 WL 4056530, at *10 (9th Cir. 20 2014) (remanding for further proceedings where ALJ s errors, including 21 improper credibility assessment, may have infected the ALJ s residual 22 functional capacity assessment and step four determination).1 23 /// 24 /// 25 26 27 28 1 The Court has not adjudicated Plaintiff s other challenges to the ALJ s decision, except insofar as to determine that a remand for immediate payment of benefits would not be appropriate. On remand, however, the ALJ may consider Plaintiff s other claims of error. 10 1 V. 2 CONCLUSION 3 For the reasons stated above, the decision of the Social Security 4 Commissioner is REVERSED and the action is REMANDED for further 5 proceedings consistent with this opinion. 6 7 Dated: September 12, 2014 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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