Richard Boyd Cooper v. Carolyn W. Colvin, No. 2:2014cv09611 - Document 16 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Richard Boyd Cooper v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 10 11 RICHARD BOYD COOPER, 12 Plaintiff, 13 14 15 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) No. CV 14-9611-AS MEMORANDUM OPINION AND ORDER OF REMAND ) ) ) 17 18 19 20 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 21 ORDERED that this matter is remanded for further administrative 22 action consistent with this Opinion. 23 24 I. PROCEEDINGS 25 26 27 On May 17, 2011, Plaintiff Richard Boyd Cooper (“Plaintiff”) applied for a period of disability and disability insurance benefits 28 1 Dockets.Justia.com 1 alleging a disabling condition which had rendered him unable to work 2 since March 31, 2011. 3 Judge 4 testimony 5 Williams, on April 3, 2013. 6 ALJ denied Plaintiff benefits in a written decision. 7 21). 8 at 1-4). (“ALJ”), from (A.R. at 156-57). Eileen Burlison, Plaintiff and a examined vocational The Administrative Law the records expert (A.R. at 33-55). and (“VE”), heard Valerie On May 2, 2013, the (A.R. at 14- The Appeals Council denied review of the ALJ’s decision. (A.R. 9 On December 16, 2014, Plaintiff filed a Complaint pursuant to 10 11 42 U.S.C. §§ 405(g) and 1383(c) alleging that the Social Security 12 Administration 13 Entry No. 1). 14 Complaint, (Docket Entry No. 12), and the Certified Administrative 15 Record (“A.R.”), (Docket Entry No. 13). 16 to proceed before a United States Magistrate Judge. 17 Nos. 9, 10). 18 (“Joint 19 Plaintiff’s claim. erred in denying him disability benefits. (Docket On May 6, 2015, Defendant filed an Answer to the The parties have consented (Docket Entry On July 15, 2015, the parties filed a Joint Stipulation Stip.”) setting forth their respective positions on (Docket Entry No. 15). 20 II. SUMMARY OF PLAINTIFF’S TESTIMONY AND ALJ’S DECISION 21 22 At the April 3, 2013, hearing, Plaintiff testified that he was 23 24 unable to continue working due to several impairments. 25 Specifically, Plaintiff stated that “a pinched nerve in the disks in 26 [his] 27 concentrate. 28 only with difficulty due to a torn meniscus, torn L4 spinal segment, neck” caused chronic (A.R. at 38). headaches that made (A.R. at 38). him unable to Plaintiff also stated that he could walk 2 1 and arthritic knee. 2 could 3 standing, sitting and laying”; stand only with difficulty balancing 4 due to his knee problems; and lift/carry only 10 or 15 pounds. 5 at 45). 6 replaced and that bone spurs and arthritis in his neck were causing 7 chronic headaches and neuropathy on his right side. 8 Plaintiff also noted that he suffered from hepatitis and diabetes. 9 (A.R. at 41, 46). sit for 15 (A.R. at 45). minutes Plaintiff also testified that he before needing to “alternate between (A.R. Plaintiff testified that his L4-L5 spinal discs needed to be (A.R. at 46). 10 11 Plaintiff testified that he did not cook, clean, or shop very 12 often, and that he could not drive for more than twenty minutes due 13 to pain. 14 activity” was “[s]omewhat limited to the physical capacity,” and that 15 he was no longer able to fish. 16 that 17 chronically fatigued during the day. (A.R. at 42). headaches Plaintiff further testified that his “social interfered (A.R. at 43). with his sleep Plaintiff also claimed and caused him to be (A.R. at 48-49). 18 The ALJ applied the five-step process to the evaluation of the 19 20 record in Plaintiff’s case. 21 determined that Plaintiff had not engaged 22 activity after the alleged onset date. 23 the 24 degenerative disc disease of the cervical and lumbar spine and a 25 small tear of the medial meniscus and lateral meniscus of the right 26 knee. 27 impairments did not meet or equal a listing found in 20 C.F.R. Part 28 404, ALJ found that (A.R. at 16). Subpart P, (A.R. at 14-16). Plaintiff had At step one, the ALJ in substantial (A.R. at 16). severe gainful At step two, impairments including At step three, the ALJ found that Plaintiff’s Appendix 1. (A.R. 3 at 16). The ALJ noted 1 particularly that the criteria for major dysfunction of a joint, 2 disorder of the spine, and chronic liver disease were unmet. 3 at 16). (A.R. 4 Before proceeding to step four, the ALJ found that Plaintiff had 5 6 the RFC to perform 7 404.1567(b) 8 limitations, and he should avoid walking on uneven terrain.” 9 at 16-17). “except light he work would as be defined limited to in 20 CFR occasional section postural (A.R. The ALJ stated that Plaintiff’s impairments could be 10 expected to cause his symptoms, but Plaintiff’s statements about the 11 “intensity, persistence and limiting effects of these symptoms [were] 12 exaggerated and inconsistent with the medical evidence, and [were] 13 not entirely credible for the reasons explained in this decision.” 14 (A.R. at 17). 15 treating 16 “inconsistent 17 evidence in the record.” 18 partial weight to the opinions of examining medical consultant Ruben 19 Ustaris and of non-examining state agency medical consultants. 20 at 18-19). The ALJ also gave no weight to the opinions of two physicians with because the they clinical, were “grossly objective, (A.R. at 18). exaggerated” and other and medical Instead, the ALJ gave (A.R. 21 At 22 step four, the ALJ determined that Plaintiff 23 possessed the RFC to return to his past relevant work as a counselor 24 therapist. 25 proceeded to step five and determined that Plaintiff’s RFC permitted 26 him to perform other jobs existing in significant numbers in the 27 national economy. 28 Plaintiff was not disabled within the meaning of 42 U.S.C. sections (A.R. at 19-20). Notwithstanding this finding, the ALJ (A.R. at 20). The ALJ accordingly determined that 4 1 416(i) and 423(d). 2 III. STANDARD OF REVIEW 3 4 5 This court reviews the Administration’s decision to determine if 6 the decision is free of legal error and supported by substantial 7 evidence. 8 1157, 1161 (9th Cir. 2012). 9 mere scintilla, but less than a preponderance. See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d “Substantial evidence” is more than a Garrison v. Colvin, 10 759 F.3d 995, 1009 (9th Cir. 2014). 11 evidence supports a finding, “a court must consider the record as a 12 whole, 13 detracts 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 15 omitted). 16 either affirming or reversing the ALJ’s conclusion, [a court] may not 17 substitute [its] judgment for that of the ALJ.” 18 Admin., 466 F.3d 880, 882 (9th Cir. 2006). weighing from both the evidence To determine whether substantial that [Commissioner’s] supports and conclusion.” evidence that Aukland As a result, “[i]f the evidence can reasonably support Robbins v. Soc. Sec. 19 IV. PLAINTIFF’S CONTENTIONS 20 21 22 Plaintiff contends that the ALJ improperly (1) rejected the 23 opinions of his treating physicians; and (2) rejected his testimony 24 as not credible. (Joint Stip. at 4). 25 26 V. DISCUSSION 27 28 v. After reviewing the record, the Court finds that Plaintiff’s 5 1 second claim warrants remand for further consideration. Because 2 remand is appropriate on the issue of whether the ALJ improperly 3 rejected Plaintiff’s testimony as not credible, the Court declines to 4 consider the remaining issues. 5 6 A. The ALJ Erred in Rejecting Plaintiff’s Testimony as Not Credible 7 8 A claimant initially must produce objective medical evidence 9 establishing a medical impairment reasonably likely to be the cause 10 of the subjective symptoms. 11 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 12 1991). 13 underlying impairment that could reasonably be expected to produce 14 the pain or other symptoms alleged, and there is no evidence of 15 malingering, the ALJ may reject the claimant’s testimony regarding 16 the severity of his pain and symptoms only by articulating specific, 17 clear and convincing reasons for doing so. 18 __ 19 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see 20 also Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 21 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th 22 Cir. 1997). F.3d Smolen v. Chater, 80 F.3d 1273, 1281 Once a claimant produces objective medical evidence of an __, 2015 WL 6684997 at *5 Brown-Hunter v. Colvin, (9th Cir. 2015) (citing 23 Plaintiff asserts that the ALJ improperly rejected his testimony 24 25 as not credible and failed to identify 26 finding, relying instead upon a “benign recitation of the medical 27 record.” 28 properly rejected Plaintiff’s testimony in light of objective medical (Joint Stip. at 14-17, 20). 6 evidence supporting this Defendant asserts that the ALJ 1 evidence and inconsistencies between Plaintiff’s alleged limitations 2 and his admitted activities of daily living. (Joint Stip. at 17-19). 3 The ALJ found Plaintiff’s testimony not entirely credible in the 4 5 following excerpt: 6 The claimant testified at the hearing as a witness on his own behalf. He graduated high school and college. He lives with his wife and daughter. He will pick his daughter up from school. He can read and use a computer. He last worked in April 2011 as a self-employed counselor. He has diabetes and liver disease. He said he had a pinched nerve in his neck which caused headaches. He said he needed 2 discs in his neck replaced. His hands will go numb. He can walk and stand, but said he needed a knee replacement. He can sit for 15 minutes. He can lift 10 to 15 pounds. 7 8 9 10 11 12 13 After careful consideration of the evidence, I find that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are exaggerated and inconsistent with the medical evidence, and are not entirely credible for the reasons explained in this decision. 14 15 16 17 18 19 (A.R. at 17). 20 The ALJ’s opinion does not explicitly identify the ALJ’s reasons 21 for discrediting Plaintiff’s testimony, and the foregoing excerpt is 22 followed by a summary of all of the medical evidence considered by the 23 ALJ. (A.R. at 17-19). The ALJ’s opinion therefore fails to provide 24 “specific, clear and convincing reasons” for rejecting Plaintiff’s 25 testimony about the intensity, persistence, and limiting effects of 26 his symptoms. See Brown-Hunter, __ F.3d __, 2015 WL 6684997 at *5-*6 27 (rejecting ALJ’s credibility determination 28 7 where ALJ “did not 1 specifically identify . . . inconsistences; she simply stated her non- 2 credibility 3 supporting her RFC determination”). See also Burch v. Barnhart, 400 4 F.3d 676, 681 (9th Cir. 2005) (“lack of medical evidence” can be “a 5 factor” in rejecting credibility, but cannot “form the sole basis”). conclusion and then summarized the medical evidence 6 7 Defendant argues that the Court may affirm the ALJ’s partial 8 rejection of Plaintiff’s testimony based on: 9 between Plaintiff’s testimony and (1) inconsistencies objective medical evidence, 10 including the opinions of Dr. Ustaris and the non-examining state 11 agency 12 Plaintiff’s statements that he could sit or drive for only 15 minutes 13 and lift only 10 or 15 pounds and his statements that he shops for 14 groceries, drives 15 socializes with 16 Defendant overstates the contradictions between Plaintiff’s alleged 17 limitations and activities, (see A.R. at 43 (testimony that Plaintiff 18 engaged in “social activity” that was “[s]omewhat limited to the 19 physical capacity”), 47 (testimony that Plaintiff walks in the back of 20 his church when he needs to stand or stretch)), and cites to a 21 discrepancy between the duration that Plaintiff could drive at the 22 time of the April 2013 hearing (15 or 20 minutes, see A.R. at 42) and 23 the duration that he could drive when he filled out an Exertion 24 Questionnaire in May 2011 (40 minutes, see A.R. at 180). medical consultants; for 40 friends. and minutes (Joint (2) at a Stip. inconsistencies time, at attends 18). between church, and Preliminarily, 25 26 More significantly, the Court cannot affirm an ALJ’s decision 27 based upon inconsistencies in testimony or medical evidence that the 28 ALJ did not specifically identify in support of her decision. 8 As the 1 Ninth Circuit observed in Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2 2014): 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 “We are constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Our decisions make clear that we may not take a general finding — an unspecified conflict between Claimant's testimony about daily activities and her reports to doctors — and comb the administrative record to find specific conflicts. “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “To support a lack of credibility finding, the ALJ was required to point to specific facts in the record....” Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009) (emphasis added) (internal quotation marks omitted). Here, the ALJ stated only — in passing and in a different section than the credibility determination — that Claimant's self-reports were inconsistent in some unspecified way with her testimony at the hearing. That finding is insufficient to meet “our requirements of specificity.” Connett, 340 F.3d at 873. [. . . .] The government argues that Claimant's testimony that she has, on average, one or two headaches a week conflicts with the medical record. As an initial matter, the ALJ never connected the medical record to Claimant's testimony about her headaches. Although the ALJ made findings [. . .] concerning Claimant's treatment for headaches, he never stated that he rested his adverse credibility determination on those findings. For that reason alone, we reject the government's argument that the history of treatment for headaches is a specific, clear, and convincing reason to support the credibility finding. 22 23 Burrell, 775 F.3d at 1138-39. See also Connett, 340 F.3d at 874 24 (“Because the ALJ did not assert specific facts or reasons to reject 25 Connett’s testimony . . . we must reverse the district court on this 26 issue.”); Brown-Hunter, __ F.3d __, 2015 WL 6684997 at *6 (“Because 27 the ALJ failed to identify the testimony she found not credible, she 28 9 1 did not link that testimony to the particular parts of the record 2 supporting 3 error.”); and Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) 4 (court “cannot affirm the decision of an agency on a ground that the 5 agency did not invoke in making its decision”). her non-credibility determination. This was legal 6 7 Here, although the ALJ summarized Plaintiff’s testimony and the 8 available medical evidence, she did not clearly identify the evidence 9 that supported her adverse credibility finding. 10 ALJ’s statement that 11 inconsistent 12 credible” 13 specificity required by case law. with is not Plaintiff’s the medical adequately complaints As a result, the evidence, supported were and and “exaggerated [were] does not not and entirely provide the 14 15 B. The ALJ’s Error Was Not Harmless 16 17 “[H]armless error principles apply in the Social Security . . . 18 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 19 (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 20 Cir. 2006)). 21 ‘inconsequential to the ultimate nondisability determination.’” 22 (citing Carmickle v. Comm’r Soc. Sec. Admin., 466 F.3d 880, 885 (9th 23 Cir. 2006)). Generally, “an ALJ’s error is harmless where it is Id. 24 25 The Court cannot conclude that the ALJ’s errors were harmless. 26 Plaintiff’s credibility was directly 27 limitations and, in turn, his RFC. 28 critical finding contributing to the final . . . decision about 10 relevant to assessing his A claimant’s RFC “may be the most 1 disability.” See McCawley v. Astrue, 423 F. App’x 687, 689 (9th Cir. 2 2011) (quoting SSR 96—5p). 3 ALJ’s determination that he could return to his prior work and the 4 availability and nature of other work that he could perform. 5 at 19-20). 6 are “inconsequential to the ultimate disability determination,” the 7 errors cannot be deemed harmless. Here, Plaintiff’s RFC was central to the (A.R. Because the Court cannot determine that the ALJ’s errors See Carmickle, 466 F.3d at 885. 8 9 C. Remand Is Warranted 10 11 The decision whether to remand for further proceedings or 12 order an immediate award of benefits is within the district court’s 13 discretion. 14 Where no useful purpose would be served by further administrative 15 proceedings, or where the record has been fully developed, it is 16 appropriate to exercise this discretion to direct an immediate award 17 of benefits. 18 further 19 proceedings.”). 20 that further administrative review could remedy the Commissioner’s 21 errors, remand is appropriate. 22 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. 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 However, where the circumstances of the case suggest McLeod v. Astrue, 640 F.3d 881, 888 23 24 Here, the Court remands primarily because it cannot effectively 25 review the ALJ’s 26 problem. 27 testimony should necessarily have been credited or that the ALJ would 28 necessarily be required to find Plaintiff disabled if Plaintiff’s The opinion, record also and further does 11 not review establish might that remedy this Plaintiff’s 1 testimony were credited. Remand is therefore appropriate. 2 3 The Court has not reached any other issue raised by Plaintiff 4 except insofar as to determine that reversal with a directive for the 5 immediate payment of benefits would be inappropriate at this time. 6 Accordingly, 7 regarding the ALJ’s alleged failure to properly consider the opinions 8 of Plaintiff's treating physicians. 9 remanded 10 for the Court further declines to consideration, rule on Plaintiff’s claims Because this matter is being this issue should also be considered on remand, if necessary. 11 VI. CONCLUSION 12 13 14 For the foregoing reasons, the decision of the Administrative Law 15 Judge is VACATED, and the matter is REMANDED, without benefits, for 16 further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 Dated: December 7, 2015. 21 22 23 24 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12
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