Sierra Hernandez v. Carolyn W. Colvin, No. 2:2014cv02401 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. This matter is remanded for further administrative action consistent with this Opinion. (See Order for complete details) (afe)
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Sierra Hernandez v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) No. CV 14-2401-AS ) ) MEMORANDUM OPINION AND ORDER OF Plaintiff, ) REMAND v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) SIERRA HERNANDEZ, 17 18 PROCEEDINGS 19 20 On March 28, 2014, Plaintiff Sierra Hernandez filed a Complaint 21 seeking review of the denial of her application for supplemental 22 security income (“SSI”). 23 Plaintiff 24 Judge. 25 (Docket Entry No. 10.) 26 Complaint and the Administrative Record (“A.R.”) on August 11, 2014. 27 (Docket consented to (Docket Entry No. 3.) proceed (Docket Entry No. 8.) Entry Nos. before a United On April 9, 2014, States Magistrate Defendant consented on May 5, 2014. Defendant subsequently filed an Answer to the 13, 14.) The parties then filed a Joint 1 28 Dockets.Justia.com 1 Stipulation (“Joint Stip.”) on October 14, 2014, setting forth their 2 respective 3 No. 15.) 4 oral argument, and it is now before the Court for decision. 5 Cal. L.R. 7–15. positions regarding Plaintiff’s claim. (Docket Entry The Court has taken this matter under submission without See C.D. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On August 25, 2010, Plaintiff filed an application for SSI, 10 alleging disability beginning December 1, 2004. 11 Plaintiff alleges disability after being diagnosed with Huntington’s 12 disease and mild scoliosis. 13 old at the time she filed her application. (A.R. 16–19.) (A.R. 125–29.) Plaintiff was 19 years (A.R. 125.) 14 15 Plaintiff’s SSI levels. claim was initial and 17 Plaintiff requested 18 (“ALJ”). (A.R. 69–74.) 19 August 21, 2011. 20 Fountain, appeared and testified at the hearing via video conference. 21 (A.R. 14, 25–45.) 22 also testified at the hearing. before an On the reconsideration hearing 52–56.) at 16 a (A.R. denied September 30, 2011, Administrative Law Judge The ALJ, Eric V. Benham, held a hearing on (A.R. 25–45.) Plaintiff and her mother, Gail Vocational expert (“VE”) Randi Landford-Hetrick (A.R. 25–45.) 23 24 The ALJ issued an unfavorable decision on September 21, 2012. 25 (A.R. 14–21.) The ALJ found that Plaintiff had severe impairments, 26 consisting of scoliosis of the back and Huntington’s disease, but the 27 Huntington’s disease was asymptomatic. 2 28 (A.R. 16.) The ALJ then 1 determined 2 (“RFC”) to perform light work. 3 limitations as follows: that Plaintiff had the (Id.) residual functional capacity The ALJ articulated additional 4 occasional difficulty getting along with coworkers, supervisors or the public; is not preclude [sic] from a normal workday or workweek; has some difficulty with memory and carrying out detailed work instructions; has some difficulty with punctuality but would not be absent from work for more than 1 day of work per month. 5 6 7 8 9 10 (A.R. 16–17.) 11 12 In determining Plaintiff’s RFC, the ALJ rejected Plaintiff’s 13 testimony and 14 symptoms. (A.R. 17–19.) 15 based on a lack of corroborating objective medical evidence, a lack 16 of consistent medical treatment, and the ALJ’s own observations of 17 Plaintiff at the hearing. her mother’s testimony concerning her subjective The ALJ’s adverse credibility finding was (Id.) 18 19 Plaintiff has no past relevant work experience, so after 20 determining her RFC, the ALJ considered whether there are jobs that 21 exist in significant numbers in the national economy that Plaintiff 22 can perform. 23 by relying on the testimony of the VE, who testified that based on 24 Plaintiff’s 25 perform the work of a cleaner/housekeeper (DOT No. 323.687-014), a 26 vending machine operator (DOT No. 319.464-014), or a shoe packer/hand 27 packager (DOT No. 920.687.100). (A.R. 20.) age, The ALJ answered this inquiry affirmatively education, work experience, (A.R. 20, 40–44.) 3 28 and RFC, she could Accordingly, the 1 ALJ found that Plaintiff had not been disabled since the date of her 2 application for SSI benefits. (A.R. 20.) 3 4 Plaintiff requested that the Appeals Council review the ALJ’s 5 unfavorable decision on November 12, 2012. 6 was denied on January 23, 2014. 7 became the final decision of the Commissioner, allowing this Court to 8 review the decision. (A.R. 10.) (A.R. 1–3.) Her request The ALJ’s decision then See 42 U.S.C. § 405(g); 1383(c). 9 10 PLAINTIFF’S CONTENTION 11 12 Plaintiff contends that the ALJ erred in rejecting the testimony 13 of her subjective symptoms by failing to provide specific, clear and 14 convincing reasons supported by substantial evidence in the record. 15 (Joint Stip. 2.) 16 STANDARD OF REVIEW 17 18 19 This Court reviews the Administration’s decision to determine 20 if: (1) the Administration’s findings are supported by substantial 21 evidence; and (2) the Administration used proper legal standards. 22 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 23 evidence is more than a scintilla, but less than a preponderance.” 24 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 25 whether 26 consider [] 27 supports and substantial the evidence record evidence as that a supports finding, whole, weighing detracts from 4 28 a To determine “a both the “Substantial court must evidence that [Commissioner’s] 1 conclusion.” 2 As a result, “[i]f evidence can reasonably support either affirming 3 or reversing the ALJ’s conclusion, [a] court may not substitute its 4 judgment for that of the ALJ.” 5 359 F.3d 1190, 1196 (9th Cir. 2004). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Batson v. Comm’r of Soc. Sec. Admin., 6 7 APPLICABLE LAW 8 9 “The Social Security Act defines disability as the ‘inability to 10 engage in any substantial gainful activity by reason of any medically 11 determinable physical or mental impairment which can be expected to 12 result in death or which has lasted or can be expected to last for a 13 continuous period of not less than 12 months.’” 14 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. § 423(d)(1)(A)). 15 The ALJ follows a five-step, sequential analysis to determine whether 16 a claimant has established disability. Webb v. Barnhart, 20 C.F.R. § 404.1520. 17 18 At step one, the ALJ determines whether the claimant is engaged 19 in substantial gainful employment activity. 20 “Substantial 21 [i]nvolves 22 duties[] and . . . [i]s done (or intended) for pay or profit.” 23 §§ 404.1510, 404.1572. 24 not engaged in substantial gainful activity, the ALJ proceeds to step 25 two which requires the ALJ to determine whether the claimant has a 26 medically impairments that 27 significantly limits her ability to do basic work activities. See gainful doing severe activity” significant is and as productive “work that physical . or . . mental Id. If the ALJ determines that the claimant is impairment or combination 5 28 defined Id. § 404.1520(a)(4)(i). of 1 id. § 2 “ability to do basic work activities” is defined as “the abilities 3 and aptitudes necessary to do most jobs.” 4 Webb, 433 F.3d at 686. 5 “a slight abnormality (or combination of slight abnormalities) that 6 has no more than a minimal effect on the ability to do basic work 7 activities.” 404.1520(a)(4)(ii); see also Webb, 433 F.3d at 686. The 20 C.F.R. § 404.1521(b); An impairment is not severe if it is merely Webb, 433 F.3d at 686. 8 9 If the ALJ concludes that a claimant lacks a medically severe 10 impairment, the ALJ must find the claimant not disabled. Id.; 11 20 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th 12 Cir. 2005) (holding that the ALJ need not consider subsequent steps 13 if there is a finding of “disabled” or “not disabled” at any step). 14 15 However, if the ALJ finds that a claimant’s impairment is 16 severe, then step three requires the ALJ to evaluate whether the 17 claimant’s 18 entitling her to a disability finding. 19 the impairment does not satisfy the statutory requirements entitling 20 the claimant to a disability finding, the ALJ must determine the 21 claimant’s RFC, that is, the ability to do physical and mental work 22 activities on a sustained basis despite limitations from all her 23 impairments. impairment satisfies certain statutory requirements Webb, 433 F.3d at 686. If 20 C.F.R. § 416.920(e). 24 25 Once the RFC is determined, the ALJ proceeds to step four to 26 assess whether the claimant is able to do any work that she has done 27 in the past, defined as work performed in the last fifteen years 6 28 1 prior to the disability onset date. 2 claimant cannot perform her past relevant work or does not have any 3 past 4 whether — taking into account the claimant’s age, education, work 5 experience, and RFC — there is any other work that the claimant can 6 do and if so, whether there are a significant number of such jobs in 7 the national economy. 8 Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(iii)–(v). 9 the burden of proof at steps one through four, and the Commissioner 10 relevant work, the ALJ If the ALJ finds that the proceeds to step five to determine Tackett v. Apfel, 180 F.3d 1094, 1098 (9th has the burden of proof at step five. The claimant has Tackett, 180 F.3d at 1098. 11 DISCUSSION 12 13 14 After consideration of the record as a whole, the Court finds 15 that the ALJ’s findings are not supported by substantial evidence or 16 free from material legal error. 1 17 the case is remanded under sentence four of 42 U.S.C. § 405(g). For the reasons discussed below, 18 19 A. The ALJ Erred in Evaluating Plaintiff’s Credibility 20 21 While the ALJ found that Plaintiff’s medically determinable 22 impairments — Huntington’s disease and scoliosis — could reasonably 23 be expected to cause Plaintiff’s alleged symptoms, the ALJ determined 24 1 25 26 27 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886–88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be reversed for errors that are harmless). 7 28 1 that Plaintiff’s statements concerning the intensity, persistence, 2 and 3 (A.R. 18.) 4 ALJ’s 5 respect to her Huntington’s disease. 6 assessment was based on a lack of corroborating objective medical 7 evidence, 8 observations of Plaintiff at the hearing. limiting effects of her alleged symptoms were not credible. Of particular importance to this Court’s review is the finding that Plaintiff Plaintiff’s was “essentially (Id.) conservative asymptomatic” with The ALJ’s credibility treatment, and his own (A.R. 18–19.) 9 10 Plaintiff argues that the ALJ failed to identify valid reasons 11 for rejecting her and her mother’s testimony about her symptoms, 12 emphasizing 13 (Joint Stip. 4–9.) As set forth below, the Court agrees that the ALJ 14 failed legally 15 credibility 16 disease. 17 regarding 18 substantial evidence. to the testimony state finding The the Court on the finds symptoms of related to sufficient the Huntington’s reasons symptoms that her of Plaintiff’s ALJ’s Plaintiff’s for his is adverse Huntington’s credibility scoliosis disease. assessment supported by 19 20 1. Legal Standard 21 22 An ALJ’s assessment of symptom severity and claimant credibility 23 is entitled to “great weight.” See Anderson v. Sullivan, 914 F.2d 24 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th 25 Cir. 1985). 26 of disabling pain, or else disability benefits would be available for “[T]he ALJ is not required to believe every allegation 27 8 28 1 the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” 2 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 3 4 In evaluating a claimant’s subjective symptom testimony, the ALJ 5 engages in a two-step analysis. 6 1028, 7 whether the claimant has presented objective medical evidence of an 8 underlying medical impairment which could reasonably be expected to 9 produce the pain or other symptoms alleged.” 1035–36 (9th Cir. Lingenfelter v. Astrue, 504 F.3d 2007). “First, the ALJ must determine Id. at 1036 (internal 10 quotations and citation omitted). If such objective medical evidence 11 exists, the the 12 because there 13 produce the degree of symptom alleged.” Smolen, 80 F.3d at 1282 14 (emphasis in finding 15 subjective complaints 16 cogent” findings that support the conclusion. 17 81 18 903 F.2d 1229, 1231 (9th Cir. 1990)). 19 malingering, 20 testimony must be “clear and convincing.” F.3d ALJ 821, may is no not reject showing original). 834 the ALJ’s the Instead, not (9th that claimant’s credible, Cir. 1995) reasons impairment in the testimony ALJ (quoting must can “simply reasonably the claimant’s make “specific, Lester v. Chater, Rashad v. Sullivan, Absent affirmative evidence of for rejecting the claimaint’s Lester, 81 F.3d at 834. 21 22 2. Objective Medical Evidence 23 24 Plaintiff argues that the ALJ improperly relied on objective 25 medical evidence to discount her and her mother’s testimony about her 26 symptoms. 27 not required to produce objective medical evidence of the severity of (See Joint Stip. 4–6.) Plaintiff points out that she is 9 28 1 her symptoms. 2 only show that her impairment “could reasonably have caused some 3 degree of the symptom”). 4 evidence cannot form the sole basis for discounting her testimony 5 regarding the severity of her symptoms. 6 676, 681 (9th Cir. 2005) (holding that a lack of medical evidence may 7 only be a factor in an ALJ’s credibility analysis). 8 found that Plaintiff’s testimony was “generally consistent” with the 9 RFC limitations, Plaintiff argues that her testimony was not at all 10 consistent. Smolen, 80 F.3d at 1282 (holding that a claimant need Moreover, a lack of corroborating medical Burch v. Barnhart, 400 F.3d Although the ALJ (Joint Stip. 4.) 11 12 The ALJ cited an absence of objective medical evidence in giving 13 “minimal weight” to the testimony from Plaintiff and her mother about 14 “the frequency, severity, and duration of her Huntington’s disease, 15 tremors, 16 slowing.” 17 at length the medical evidence from Dr. John Sedgh — an internal 18 medicine doctor who performed a consultative evaluation — and a State 19 Agency 20 discussion 21 physical symptoms presented by Plaintiff, as opposed to mental or 22 behavioral symptoms. back pain, (A.R. 18.) medical of depression, memory, and cognitive To support this conclusion, the ALJ discussed consultant. this decreased medical (A.R. 18–19.) evidence was However, mostly the limited ALJ’s to the 23 24 For example, as described by the ALJ, Dr. Sedgh and the State 25 Agency medical consultant opined that Plaintiff had a limited range 26 of motion of the back, but could still lift and carry 10 pounds 27 10 28 occasionally. 2 1 frequently 2 214–21.) 3 a specific, clear and convincing reason for rejecting Plaintiff’s 4 testimony about the severity and limitations of her back pain. 5 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding 6 that the opinions of examining doctors and medical experts can serve 7 “as substantial evidence supporting the ALJ’s findings with respect 8 to [the claimant’s] physical impairment and exertional limitations”). 9 But and 20 pounds (A.R. 18–19, 194–98, This medical evidence, as described by the ALJ, constitutes neither doctor addresses the severity or See significance of 10 Plaintiff’s alleged mental-health and behavioral problems; thus, the 11 evidence does little to discredit the testimony from Plaintiff and 12 her mother about Plaintiff’s mental and behavioral health symptoms. 13 (See A.R. 29–40.) 14 15 At the hearing, Plaintiff testified to having trouble with her 16 memory, having difficulty speaking to people, feeling withdrawn, and 17 being clumsy. 18 daughter will “fly into a sudden rage” two to four times a day. 19 (A.R. 35–36.) 20 generally apathetic. 21 mother’s 22 Medical Center from 2006 to 2008. 23 The 2006 Direct DNA Test for Huntington Disease Mutations (“the DNA 24 Test”) (A.R. 29–30.) Plaintiff’s mother testified that her Plaintiff also sleeps into the late afternoon and is testimony indicates (A.R. 35.) with Plaintiff bolsters her and her reference “Clinical to medical reports from UCLA (See Joint Stip. 3; A.R. 225–38.) Diagnosis: Symptomatic.” (A.R. 226.) 25 26 27 2 The State Agency medical consultant first assessed that Plaintiff could perform medium work, but as the ALJ pointed out, that assessment was later adjusted to light work. (See A.R. 19.) 11 28 1 Moreover, also contained in the record are summaries of Plaintiff’s 2 visits 3 (A.R. 229–38.) 4 Huntington’s 5 Plaintiff’s behavioral problems may be attributable to Huntington’s 6 disease. to Dr. Yvette Bordelon at UCLA between 2006 and 2008. In the summaries, Dr. Bordelon discusses Plaintiff’s disease, clearly indicating her conclusion that (Id.) 7 The Court finds that the ALJ erred in failing to specifically 8 9 address the alleged severity of these behavioral symptoms, and 10 instead, formed conclusions about Plaintiff’s Huntington’s disease 11 that are unsupported by the record. The ALJ found as follows: 12 It is noted that Huntington’s disease is a fatal condition but usually does not begin to affect the nervous system until ages 35 to 50. However, the claimant is only 21 years old. Moreover, the only symptom evident when examined by the consultative examiner was a slight tremor of the hands. In addition, her neurological examination was normal. Exh. 3F. The claimant was essentially asymptomatic at this time and the undersigned finds no functional limitations due to this genetic condition. 13 14 15 16 17 18 19 20 (A.R. 18.) 21 The ALJ does not provide evidentiary support for the medical 22 23 conclusion 24 affect the nervous system until ages 35 to 50.” 25 While the ALJ’s finding may be true, the Court cannot find evidence 26 from a medical professional in the record to support it. 27 the ALJ that Huntington’s entirely fails to disease address 12 28 “usually the issue does not begin to (See A.R. 18.) of Moreover, juvenile-onset 1 Huntington’s disease, which is Plaintiff’s apparent diagnosis. 2 A.R. 225–38.) (See 3 4 In addition, the ALJ discredited Plaintiff’s testimony about 5 symptoms she exhibited of Huntington’s disease by questioning the DNA 6 Test. 7 that it “revealed findings which identified the claimant as either a 8 Huntington disease patient or a presymptomatic carrier.” 9 In so doing, the Court finds that the ALJ essentially admitted to an The ALJ interpreted this document as ambiguous, and stated (A.R. 18.) 10 inability to interpret the DNA Test. 11 the claimant is a pre-symptomatic carrier.”).) 12 erred 13 without the help of a qualified medical professional to explain the 14 meaning of the DNA Test. in using this document to (See id. (“It was unclear if discredit Therefore, the ALJ Plaintiff’s testimony 15 16 17 Webster’s New World Medical Dictionary defines Huntington’s disease as, 18 19 20 21 22 23 24 a genetic degenerative disorder of the brain cells characterized by mental and physical deterioration that leads to death. Abbreviated HD. Although HD is usually an adult-onset disorder, it can affect children as well. The average survival time is 15 to 18 years after the onset of symptoms. Mood disturbance is usually the first symptom seen, with bipolar disorderlike mood swings that may include mania, depression, extreme irritability or angry outbursts and psychosis. . . . 25 26 WEBSTER’S NEW WORLD MEDICAL DICTIONARY 204 (3d ed. 2008). 27 mother testified at length about her behavioral problems, which could 13 28 Plaintiff and her 1 reasonably 2 disease. 3 doctor at UCLA Medical Center — appeared to consider her behavior a 4 symptom as far back as 2006. 5 his unfavorable decision, made no specific findings with regard to 6 this 7 detail 8 testimony 9 reference to Dr. Sedgh’s consultative examination, noting that the be interpreted as (See A.R. 29–40.) alleged as symptom to why about or he the first of Huntington’s Dr. Bordelon — Plaintiff’s treating (A.R. 229–38.) its severity discredited behavioral symptom and Yet the ALJ, in issuing provided Plaintiff’s, problems. The ALJ additional her or no mother’s, made a (A.R. 18, 197–98.) passing 10 “neurological examination was normal.” However, 11 Dr. Sedgh’s short, cursory evaluation appears limited to testing her 12 physical responses to stimuli and does not discuss mental-health or 13 behavioral problems. (See A.R. 197–98.) 14 15 The Court finds that the ALJ’s reliance on the objective medical 16 evidence in this case was not a clear and convincing reason for 17 discounting Plaintiff’s credibility with respect to the severity of 18 her symptoms of Huntington’s disease. 19 to provide reasons for his adverse credibility findings and failing 20 to develop the evidentiary record. Moreover, while the ALJ did cite 21 an objective 22 respect 23 corroborating objective medical evidence cannot be the sole reason 24 for discrediting Plaintiff’s testimony. 25 As discussed below, because the Court finds the other reasons given 26 for 27 insufficient, the matter must be remanded. overall to lack all discounting of of corroborating Plaintiff’s Plaintiff’s alleged medical symptoms, evidence the with absence of See Burch, 400 F.3d at 681. credibility 14 28 Thus, the ALJ erred in failing are also legally 1 3. Conservative Treatment 2 3 The ALJ noted the “lack of consistent medical treatment” as 4 another 5 subjective symptoms. 6 “only two progress notes” from 2010 relating to abdominal and spinal 7 pain, and Plaintiff’s “conservative course of treatment” to treat her 8 back pain and scoliosis. 9 explicit or specific findings as to Plaintiff’s treatment, or lack of 10 reason to discount Plaintiff’s (A.R. 18.) testimony regarding her The ALJ specifically pointed to (A.R. 18, 184–89.) The ALJ did not make treatment, for Huntington’s disease. 11 “[E]vidence of conservative treatment is sufficient to discount 12 13 a claimant’s testimony regarding severity of an impairment.” 14 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (internal quotations and 15 citation omitted). 16 relied on the absence of evidence that Plaintiff is seeking regular 17 treatment for Huntington’s disease. 18 Plaintiff argues that the ALJ’s conservative-treatment reasoning is 19 legally insufficient because there is no treatment for Huntington’s 20 disease 21 testified 22 treatment. until to the Parra Thus, according to Defendant, the ALJ properly disease multiple is failed in its (Joint Stip. 12.) late attempts at stages and getting However, her mother mental-health (Joint Stip. 7.) 23 24 The Court finds that the ALJ’s reliance on a lack of treatment 25 to discredit the alleged severity of Plaintiff’s symptoms is legally 26 / / / 27 / / / 15 28 1 insufficient with respect to Plaintiff’s Huntington’s disease. 3 2 ALJ’s findings lack the requisite specificity and the evidentiary 3 record 4 Huntington’s disease. 5 only evidence of a course of treatment for Huntington’s disease. 6 (See A.R. 34.) 7 disease, as Plaintiff’s mother testified, then a lack of treatment 8 can 9 testimony of her symptoms. is hardly undeveloped regarding Plaintiff’s treatment The for The testimony of Plaintiff’s mother is the If in fact there is no treatment for Huntington’s serve as a valid basis for discrediting Plaintiff’s 10 11 In addition, Plaintiff’s mother also testified that Plaintiff 12 tried “about six times” to get psychiatric help at the county mental 13 health 14 Plaintiff’s 15 constitute 16 treatment.” 17 1294, 1299–1300 (9th Cir. 1999) (“[W]e have particularly criticized 18 the use of a lack of treatment to reject mental complaints both 19 because mental illness is notoriously underreported and because it is 20 a questionable practice to chastise one with a mental impairment for 21 the exercise of poor judgment in seeking rehabilitation.”). center, but repeated “a lack kept getting attempts of at consistent turned away. psychiatric treatment” (A.R. treatment or 34–35.) do not “conservative See Regenitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 22 23 24 25 26 27 3 To the extent that Plaintiff challenges the ALJ’s conservativetreatment reasoning as to the severity of her pain and scoliosis symptoms, the Court is satisfied that the ALJ stated legally sufficient reasons for rejecting Plaintiff’s testimony regarding the severity and disabling effects of her scoliosis symptoms. The ALJ made specific findings, referencing the two progress reports from 2010 as well as the conservative course of medications that Plaintiff was taking to manage her pain symptoms. (See A.R. 18.) 16 28 1 Accordingly, the Court finds that the ALJ’s reliance on 2 Plaintiff’s lack of treatment for Huntington’s disease was neither a 3 specific 4 about Plaintiff’s symptoms. nor clear and convincing reason for rejecting testimony 5 6 4. The ALJ’s Observations at the Hearing The ALJ 7 8 9 also discredited Plaintiff’s personal observations at the hearing. testimony (A.R. 19.) based on his The ALJ noted that 10 “her verbal responses and overall demeanor were not suggestive of a 11 person who is experiencing disabling limitations.” (Id.) 12 The Ninth Circuit has repeatedly condemned so-called “sit and 13 14 squirm” jurisprudence. 15 Cir. 16 observation of [the claimant], when [the claimant’s] statements . . . 17 are supported by objective evidence.”). 18 personal 19 improper. 1985) (“Denial Perminter v. Heckler, 765 F.2d 870, 872 (9th of observations benefits does not cannot be based on the ALJ’s But inclusion of an ALJ’s necessarily render the decision See Verdugo v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1989). 20 21 Here, the ALJ’s personal observations 22 troubling. 23 video 24 demeanor, the ALJ stated “she was able to enter and exit the hearing 25 room without much difficulty.” 26 Plaintiff 27 clearly.” Plaintiff are Plaintiff and her mother appeared at the hearing via conference. was able (Id.) (A.R. to 14.) Yet in (A.R. 19.) “answer questions describing Plaintiff’s The ALJ also noted that quite thoroughly and The hearing transcript, however, tells another 17 28 of 1 story. 2 throughout her testimony, and she ultimately turned the testimony 3 over to her mother. 4 lot better than I can, my mom, my mom could tell you a lot better 5 than I can.”).) 6 were 7 constitute a clear and convincing reason for discounting Plaintiff’s 8 symptom testimony. Plaintiff had difficulty explaining herself and her symptoms not (See A.R. 32 (“You know, my mom could tell you a The Court finds that the ALJ’s personal observations supported by substantial evidence and therefore do not 9 10 B. Remand is Appropriate 11 The decision whether to remand for further proceedings or order 12 13 an immediate award of benefits is within the district court’s 14 discretion. 15 Where no useful purpose would be served by further administrative 16 proceedings, or where the record has been fully developed, it is 17 appropriate to exercise this discretion to direct an immediate award 18 of benefits. 19 further 20 proceedings.”). Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Id. at 1179 (“[T]he decision of whether to remand for proceedings turns upon the likely utility of such 21 When 22 the credibility of a claimant’s subjective-symptom 23 testimony is at issue, the Ninth Circuit has developed a three-part 24 standard. 25 July 26 testimony and remand for an immediate award of benefits only where, 14, Garrison 2014). v. Courts Colvin, 759 should 27 18 28 F.3d credit as 995, true 1019 the (9th Cir. claimant’s 1 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence . . . ; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 2 3 4 5 6 Id. 7 that further administrative review could remedy the ALJ’s errors or 8 “the record as a whole creates serious doubt that a claimant is, in 9 fact, 10 However, where, as here, the circumstances of the case suggest disabled,” remand is appropriate. Id. at 1021; see also McLeod, 640 F.3d at 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. 11 12 The Court has determined that the ALJ erred in rejecting 13 Plaintiff’s credibility based on the objective medical evidence and 14 lack of treatment for Plaintiff’s Huntington’s disease. 15 provided 16 undeveloped evidentiary record. 17 Plaintiff’s RFC after revisiting his credibility determination on the 18 limiting 19 specifically the limitations posed by her alleged mental-health and 20 behavioral problems. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / by the effects ALJ of lacked specificity suffered from an On remand, the ALJ should reassess Plaintiff’s 19 28 and The reasons Huntington’s disease symptoms, 1 CONCLUSION 2 3 4 For the reasons discussed above, this matter is remanded for further administrative action consistent with this Opinion. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 9 10 Dated: December 29, 2014. _/s/__________________________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 28
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