Verna Gail Griffin v. Carolyn W. Colvin, No. 2:2015cv00535 - Document 22 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Verna Gail Griffin v. Carolyn W. Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 VERNA GAIL GRIFFIN, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ____________________________________) NO. CV 15-535-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on January 23, 2015, seeking review 26 of the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on March 19, 2015. 28 Plaintiff filed a motion for summary judgment on July 15, 2015. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on September 14, 2015. 2 The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; “Order,” filed January 28, 2015. 4 5 BACKGROUND 6 7 Plaintiff alleges disability since August 11, 2010, based on 8 lumbar degenerative disc disease and a back injury (Administrative 9 Record (“A.R.”) 233, 305). Plaintiff worked as a hotel reservation 10 clerk until she suffered a work-related injury to her back on June 25, 11 2007 (A.R. 40, 42-43, 48, 233-34, 245, 282, 334, 336-37, 350-58, 464- 12 72). 13 14 The Administrative Law Judge (“ALJ”) found Plaintiff suffers from 15 a severe right knee disorder with pain, and severe degenerative disc 16 disease with low back pain, but retains the residual functional 17 capacity to perform a limited range of sedentary work (A.R. 16-19).1 18 Specifically, the ALJ found that Plaintiff can perform sedentary work 19 except: 20 21 22 23 24 25 26 27 28 1 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a). 2 1 she can stand and walk for up to two of eight hours, 2 cumulatively, but requires use of a cane for extended 3 periods of ambulation; can sit for no more than six of eight 4 hours, cumulatively, but must have an opportunity to 5 alternate between seated and standing positions at least 6 every 30 minutes; has unlimited capacity for pushing and 7 pulling, except weight restrictions for lifting and 8 carrying; can no more than occasionally climb ramps or 9 stairs, balance, or stoop; can never crawl, kneel, crouch or 10 climb ladders or ropes; and cannot be exposed to dangerous 11 machines or unprotected heights. 12 13 (A.R. 17). 14 15 In finding Plaintiff retains this capacity, the ALJ purportedly 16 gave “substantial evidentiary weight” to opinions from Agreed Medical 17 Examiner (“AME”) Dr. Steven Silbart, the consultative examiners, and 18 the State agency review physicians. 19 the contrary opinion of Plaintiff’s treating physician, Dr. Philip 20 Conwisar (A.R. 1388-95). 21 Plaintiff’s contrary testimony. See A.R. 18-19. The ALJ rejected The ALJ also rejected as not credible See A.R. 17, 19. 22 23 The ALJ found that Plaintiff’s residual functional capacity 24 permitted her to perform her past relevant work as a reservation clerk 25 as actually and generally performed (A.R. 19-20 (relying on vocational 26 /// 27 /// 28 /// 3 1 expert testimony at A.R. 56-61)).2 2 Plaintiff not disabled (A.R. 20). 3 (A.R. 1-3). Accordingly, the ALJ found The Appeals Council denied review 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. section 405(g), this Court reviews the 8 Administration’s decision to determine if: (1) the Administration’s 9 findings are supported by substantial evidence; and (2) the 10 Administration used correct legal standards. See Carmickle v. 11 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 12 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 13 682 F.3d 1157, 1161 (9th Cir. 2012). 14 relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion.” 16 (1971) (citation and quotations omitted); see also Widmark v. 17 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 18 19 If the evidence can support either outcome, the court may 20 not substitute its judgment for that of the ALJ. 21 Commissioner’s decision cannot be affirmed simply by 22 isolating a specific quantum of supporting evidence. 23 Rather, a court must consider the record as a whole, But the 24 25 26 27 28 2 Plaintiff reported that her job as a reservationist required her to walk 1.5 hours, stand 0.5 hours, and sit six hours in an eight hour day (A.R. 245). She lifted less than 10 pounds and was not required to climb, stoop, kneel, crouch, or crawl (A.R. 245). Nor did she use any machines, tools, or equipment (A.R. 245). 4 1 weighing both evidence that supports and evidence that 2 detracts from the [administrative] conclusion. 3 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 5 quotations omitted). 6 7 DISCUSSION 8 9 Plaintiff contends, inter alia, that the ALJ materially erred in: 10 (1) the evaluation of Dr. Conwisar’s opinion; and (2) the evaluation 11 of Plaintiff’s credibility. 12 Court agrees. 13 appropriate. For the reasons discussed herein, the Remand for further administrative proceedings is 14 15 I. Summary of the Medical Record 16 17 MRI studies from the time of Plaintiff’s work injury showed a 18 five millimeter disc bulge at L5-S1, and early disc desiccation at L4- 19 L5 with a three millimeter disc bulge, which was causing pain 20 radiating down Plaintiff’s legs (A.R. 48, 351, 360-61; see also A.R. 21 605-06 (follow up MRI from May 13, 2009, also showing mild spondylosis 22 throughout the lumbar spine and disc dessication at L5-S1); A.R. 700- 23 01 (post-operative MRI from March 29, 2011, showing mild arthritis at 24 L4-L5, small posterior annular fissure at L5-S1, and mild loss of disc 25 height at L5-S1); A.R. 868-70 (MRI from March 13, 2012 showing a 1-2 26 millimeter disc bulge at L4-L5 with moderate-to-severe facet 27 arthropathy, mild-to-moderate loss of disc height and a 1-2 millimeter 28 bulge at L5-S1)). 5 1 Plaintiff’s worker’s compensation orthopedic surgeon, Dr. 2 Conwisar, treated Plaintiff for her back injury from April 2008 3 through at least December 2012 (A.R. 43, 421-74, 477-79, 483-85, 572- 4 73, 586, 654-79, 687-88, 692-93, 702-03, 719, 723-25, 744-45, 776-79, 5 787-95, 814-15, 871-1088, 1355-86). 6 pain relievers, in coordination with pain management specialists, and 7 requested authorization for three lumbar epidural cortisone injections 8 and a short course of physical therapy (A.R. 460-72, 661-63, 1090- 9 1119, 1121-23, 1132-74, 1201-06, 1210-25). Dr. Conwisar prescribed narcotic Plaintiff was given a 10 total of three epidural injections for her pain in November and 11 December of 2009, “without significant improvement” (A.R. 48, 559-71, 12 574-85, 589-99, 660, 780-82, 785-86). 13 14 Orthopedic surgeon, Dr. Edwin Haronian, evaluated Plaintiff on 15 May 20, 2010, and stated that additional lumbar injections would be 16 “out of the question” because Plaintiff’s “pain recurred” after the 17 previous injections (A.R. 618). 18 Examiner Dr. Silbart (A.R. 763-75), recommended decompression surgery 19 at the L5-S1 level (for Plaintiff’s leg pain), and possibly a lumbar 20 arthrodesis (for her back pain) (A.R. 618-23). 21 Haronian performed the lumbar decompression surgery 22 (“hemilaminectomies” at L5 and S1), which reportedly helped resolve 23 Plaintiff’s leg pain, but not her back pain (A.R. 48, 624-28, 637-39). 24 Dr. Haronian requested authorization for physical therapy (A.R. 625). 25 By February 1, 2011, Plaintiff had completed nine post-operative 26 physical therapy sessions (A.R. 654). 27 /// 28 /// Dr. Haronian, like Agreed Medical 6 On August 6, 2010, Dr. Dr. Conwisar ordered additional 1 physical therapy to occur after February 1, 2011 (A.R. 654).3 2 3 Plaintiff’s back did not improve after surgery. See A.R. 48-49 4 (medical expert calling it a “failed surgery”). As the medical expert 5 stated, “it’s a frequent scenario, the more [the doctors] did the 6 worse she got” (A.R. 48). 7 that Plaintiff’s pain was more severe and that she would need an 8 updated MRI and spine surgical re-evaluation (A.R. 1004-05; see also 9 A.R. 1384 (recommending same in May of 2012)). As of January 24, 2012, Dr. Conwisar stated On evaluation in 2012, 10 Dr. Haronian reportedly recommended pool physical therapy (A.R. 1356). 11 In May and July of 2012, Plaintiff underwent additional epidural 12 steroid injections for her pain (A.R. 1192-99, 1207-09). 13 initially reported “significant relief in her pain which has been 14 persistent so far” (A.R. 1211). 15 September 25, 2012, that the injections did not provide lasting She However, Dr. Conwisar indicated as of 16 17 18 19 20 21 22 23 24 25 26 27 28 3 On February 2, 2011, AME Dr. Silbart found that Plaintiff continued to be “validly temporarily totally disabled” (A.R. 713). On May 19, 2011, Dr. Silbart found that Plaintiff then was “Permanent and Stationary,” and opined that Plaintiff was not capable of performing her “usual and customary work duties” (A.R. 682-83). On August 12, 2011, Dr. Silbart opined that Plaintiff’s current lifting capacity was between 25 and 28 pounds, and that she would be precluded from “prolonged sitting,” but he did not assign a specific sitting time limit (A.R. 68990). In his most recent examination on February 11, 2013, Dr. Silbart did not express an opinion as to Plaintiff’s limitations, but he noted that she presented with “increased lumbar symptomatology” (A.R. 1412). Consistent with her increased symptomatology, Dr. Silbart assigned Plaintiff a “35% Whole Person Impairment” score. See A.R. 1413; compare A.R. 682 (Dr. Silbart assigning a 27 percent impairment on May 19, 2011, when he opined that Plaintiff was incapable of performing her ordinary work duties); A.R. 690 (Dr. Silbart also assigning a 27 percent impairment on August 12, 2011, when he opined that Plaintiff could lift between 25 and 28 pounds and would be precluded from prolonged sitting). 7 1 significant improvement (A.R. 1368). “She continues to have severe 2 low back pain radiating predominantly to the right lower extremity” 3 (A.R. 1368). 4 5 Dr. Conwisar completed a Residual Functional Capacity Assessment 6 form dated February 28, 2013 (A.R. 1388-95). Dr. Conwisar indicated 7 that Plaintiff could lift and carry less than 10 pounds, would require 8 a hand-held assistive device for ambulation, and must periodically 9 alternate between sitting and standing (A.R. 1389). Dr. Conwisar did 10 not indicate how long he thought Plaintiff could stand and/or walk or 11 sit in a workday (A.R. 1389). 12 wheelchair due to alleged problems with her right knee, unrelated to 13 her back injury (A.R. 1389).4 14 should never climb, balance, stoop, kneel, crouch, or crawl (A.R. 15 1390). He stated Plaintiff then was in a Dr. Conwisar indicated that Plaintiff 16 17 As the medical expert stated, there was some evidence of right 18 knee arthritis (A.R. 48; see also A.R. 844-57, 1227-31, 1255-1353 19 (medical records reporting right knee pain and arthritis and related 20 treatment)). 21 2012, testified that her knee is “bone on bone” and also testified 22 that Dr. Minkowitz at Kaiser said she is a candidate for knee 23 replacement (A.R. 51-52; see also A.R. 1346-48 (medical record from 24 arthroscopic surgery)). 25 /// Plaintiff underwent arthroscopic surgery in November of 26 27 28 4 At her February 11, 2013 Agreed Medical Examination, Plaintiff presented with both a cane and a wheelchair but reportedly “can walk without the use of either.” See A.R. 1410. 8 1 The medical expert opined that Plaintiff could perform light work 2 limited to standing two hours in an eight hour workday, and sitting 3 approximately six hours in an eight hour workday, with periodic 4 alternation between sitting and standing (A.R. 49). 5 that Plaintiff could never climb ladders, ropes, or scaffolding, and 6 could occasionally climb ramps and stairs, balance, stoop, kneel, 7 crouch, and crawl (A.R. 49). 8 environmental limitations (A.R. 49).5 The expert opined The expert found no manipulative or 9 10 II. 11 The ALJ’s Stated Reasons For Rejecting Dr. Conwisar’s Opinion are Insufficient. 12 13 A treating physician’s conclusions “must be given substantial 14 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 15 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 16 give sufficient weight to the subjective aspects of a doctor’s 17 opinion. . . . 18 treating physician”) (citation omitted); see also Orn v. Astrue, 495 19 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to 20 treating physician opinions). 21 /// 22 /// This is especially true when the opinion is that of a Even where the treating physician’s 23 24 25 26 27 28 5 On October 23, 2011, a consultative orthopedic examiner found lesser limitations than those found by the medical expert. The examiner opined that Plaintiff would be limited to light work, with standing and walking six hours in an eight hour day, sitting six hours, and only occasional climbing, stooping, kneeling, and crouching (A.R. 835-40; see also A.R. 541-46 (May 8, 2009 consultative orthopedic examination also finding lesser limits than the medical expert found)). 9 1 opinions are contradicted,6 “if the ALJ wishes to disregard the 2 opinion[s] of the treating physician he . . . must make findings 3 setting forth specific, legitimate reasons for doing so that are based 4 on substantial evidence in the record.” 5 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 6 see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the 7 treating physician’s opinion, but only by setting forth specific, 8 legitimate reasons for doing so, and this decision must itself be 9 based on substantial evidence”) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 10 11 12 In the present case, the ALJ rejected Dr. Conwisar’s opinion, stating the following: 13 14 Throughout 2012 and in early 2013, when not noting a short- 15 term disability, Dr. Conwisar repeatedly notes that the 16 claimant’s long-term (permanent and stationary) 17 Work/Disability Status is as previously determined by the 18 Agreed Medical Examiner [A.R. 1354-86 (Dr. Conwisar’s 19 reports for Plaintiff’s worker’s compensation claim)]. 20 is, Dr. Conwisar agrees with the opinion of Dr. Silbart that 21 the claimant’s long-term functioning is limited to lifting 22 25 to 28 pounds with no prolonged sitting. 23 /// 24 That /// 25 26 6 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 10 1 In spite of this, on February 28, 2013 Dr. Conwisar issued a 2 residual functional capacity form indicating that the 3 claimant is, essentially, completely disabled [A.R. 1388- 4 95]. 5 necessary wheelchair use to the claimant’s knee pain, which 6 he does not treat, and he explicitly anticipates an 7 arthroscopic surgery on the knee, which, is apparently based 8 on the claimant’s statements. 9 Conwisar actually examined the claimant’s knee or viewed any However, it explicitly attributes the claimant’s There is no evidence Dr. 10 medical images of the knee. As such, Dr. Conwisar is not in 11 a qualified position to address the knee impairments. . . . 12 [I]n the absence of any significant knee treatment record or 13 medical image I am unable to accept Dr. Conwisar’s 14 recommendation that the claimant is completely disabled by 15 knee pain. 16 17 (A.R. 18-19). 18 19 An ALJ’s material mischaracterization of the record can warrant 20 remand. See, e.g., Regennitter v. Commissioner of Social Sec. Admin., 21 166 F.3d 1294, 1297 (9th Cir. 1999). 22 mischaracterized the record in evaluating Dr. Conwisar’s opinion. 23 First, while Dr. Conwisar’s notes reference Plaintiff’s “Permanent and 24 Stationary” status and refer to Plaintiff’s work status with “per AME” 25 in December of 2012 (see, e.g., 1356, 1358, 1360), Dr. Conwisar’s 26 notes also indicate that Plaintiff was scheduled to have a re- 27 evaluation by the Agreed Medical Examiner that had not happened as of 28 December 4, 2012 (A.R. 1355). Here, the ALJ materially Prior to that time, Dr. Conwisar either 11 1 indicated a need for an “AME” re-evaluation regarding Plaintiff’s work 2 status and treatment (see, e.g., A.R. 1363-64, 1367, 1369, 1371, 3 1373), or referred to the prior “Permanent and Stationary” finding 4 (see, e.g., 1376-77, 1382, 1384). 5 the notes that Dr. Conwisar considered and agreed with Dr. Silbart’s 6 snapshot from August of 2011 suggesting that Plaintiff could lift 7 between 25 and 28 pounds.7 8 any alleged inconsistency between Dr. Conwisar’s treatment notes 9 (which utilize worker’s compensation terminology), and Dr. Conwisar’s There is no indication anywhere in To the extent the ALJ attempted to rely on 10 opinion regarding Plaintiff’s residual functional capacity, this is 11 not a specific and legitimate reason for rejecting Dr. Conwisar’s 12 opinion in total. 13 sedentary work, the ALJ arguably agreed with Dr. Conwisar’s opinion 14 that Plaintiff could only lift and carry less than 10 pounds. 15 A.R. 17 with A.R. 1389. Significantly, in finding Plaintiff capable of only Compare 16 17 Second, contrary to the ALJ’s assertion, Dr. Conwisar’s residual 18 functional capacity opinion does not suggest “complete” disability due 19 to knee pain. 20 Plaintiff then was in a wheelchair because of her right knee problem 21 (A.R. 1389). 22 have to alternate between sitting and standing to relieve her pain, 23 and would have to use a hand-held assistive device for ambulation – 24 suggesting that he was not basing all the limitations on Plaintiff’s 25 current knee issue (A.R. 1389). As summarized above, Dr. Conwisar did state that However, Dr. Conwisar indicated that Plaintiff would To the contrary, Dr. Conwisar 26 27 28 7 AME Silbart himself later gave a more restrictive assessment, apparently based in part on Plaintiff’s “increased lumbar symptomatology.” See footnote 3, supra. 12 1 expressly indicated that his findings were based on facts unrelated to 2 Plaintiff’s knee issues, including the following: (1) Plaintiff had 3 undergone a lumbar microdiscectomy at L5-S1 and had two lumbar 4 epidural injections (A.R. 1389); (2) a MRI from March of 2012 showed 5 moderate to severe facet arthropathy at L4-L5, and left 6 hemilaminectomy deficit at L5-S1 (A.R. 1390); and (3) Plaintiff was 7 having more severe pain in the lumbar spine, radiating predominantly 8 to the right lower extremity, and that she had not obtained 9 “significant improvement” from treatment (A.R. 1393). Thus, the ALJ 10 could not properly reject Dr. Conwisar’s opinion based on assertion 11 that Dr. Conwisar predicated his opinion only on Plaintiff’s current 12 knee problem. Manifestly, he did not. 13 14 As discussed above, Dr. Conwisar did not indicate how long 15 Plaintiff could stand and/or walk or sit in a regular workday (A.R. 16 1389). The ALJ should have further developed the record on this 17 point. See generally Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 18 1983) (“[T]he ALJ has a special duty to fully and fairly develop the 19 record to assure the claimant’s interests are considered. 20 exists even when the claimant is represented by counsel.”) (internal 21 citation omitted); see also Mayes v. Massanari, 276 F.3d 453, 459-60 22 (9th Cir. 2001) (“An ALJ’s duty to develop the record further is 23 triggered only when there is ambiguous evidence or when the record is 24 inadequate to allow for proper evaluation of the evidence.”) (citation 25 omitted). 26 is precluded from prolonged sitting (A.R. 18, 690). 27 and the medical expert opined (and the ALJ agreed) that Plaintiff 28 would have to alternate between sitting and standing periodically to This duty As the ALJ acknowledged, Dr. Silbart opined that Plaintiff 13 Both Dr. Conwisar 1 relieve her pain (A.R. 17, 49, 1389). Without the benefit of any 2 examination, the non-examining medical expert opined that Plaintiff 3 would be capable of sitting six hours and standing and/or walking two 4 hours in a workday (A.R. 49).8 5 concerning these abilities were the consultative examiners, whose 6 opinions the ALJ did not adopt for these abilities and whose opinions 7 predated Dr. Conwisar’s opinion by more than a year. 8 541-46, 835-40. The only examining doctors who opined See A.R. 18, 9 10 III. The ALJ’s Credibility Findings Are Insufficient. 11 12 Where, as here, an ALJ finds that a claimant’s medically 13 determinable impairments reasonably could be expected to cause the 14 symptoms alleged (A.R. 17), the ALJ may not discount the claimant’s 15 testimony regarding the severity of the symptoms without making 16 “specific, cogent” findings, supported in the record, to justify 17 discounting such testimony. 18 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 19 but see Smolen v. Chater, 80 F.3d at 1282-84 (indicating that ALJ must See Berry v. Astrue, 622 F.3d 1228, 1234 20 21 22 23 24 25 26 27 28 8 “The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.” Lester v. Chater, 81 F.3d at 831 (emphasis original); see also Orn v. Astrue, 495 F.3d at 632 (“When [a nontreating] physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the [nontreating] physician are not ‘substantial evidence.’”); Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“The nonexamining physicians’ conclusion, with nothing more, does not constitute substantial evidence, particularly in view of the conflicting observations, opinions, and conclusions of an examining physician”). 14 1 state “specific, clear and convincing” reasons to reject a claimant’s 2 testimony where there is no evidence of malingering).9 3 conclusory findings do not suffice. 4 882, 885 (9th Cir. 2004) (the ALJ’s credibility findings “must be 5 sufficiently specific to allow a reviewing court to conclude the ALJ 6 rejected the claimant’s testimony on permissible grounds and did not 7 arbitrarily discredit the claimant’s testimony”) (internal citations 8 and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 9 (9th Cir. 2001) (the ALJ must “specifically identify the testimony Generalized, See Moisa v. Barnhart, 367 F.3d 10 [the ALJ] finds not to be credible and must explain what evidence 11 undermines the testimony”); Smolen v. Chater, 80 F.3d at 1284 (“The 12 ALJ must state specifically which symptom testimony is not credible 13 and what facts in the record lead to that conclusion.”); see also 14 Social Security Ruling 96-7p.10 15 to support the alleged severity of a claimant’s symptomatology “can be 16 a factor” in rejecting a claimant’s credibility, but cannot “form the 17 sole basis.” A lack of objective medical evidence See Burch v. Barnhart, 400 F.3d 676, 681 (2005). 18 19 20 21 22 23 24 25 26 27 28 9 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 10 Social security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 15 1 Plaintiff testified that she was taking Norco for her pain and 2 Zanaflex for muscle spasms (A.R. 44-45). She said that, with 3 medication, her pain is approximately a seven on a scale of one to 10 4 (A.R. 55). 5 “woozy” and sleepy and prevents her from focusing or concentrating 6 (A.R. 50-51). 7 reservation clerk due to the side effects of her medication (A.R. 51). Further, Plaintiff said that her medication makes her Plaintiff said she could not perform her job as a 8 9 Plaintiff also testified that she does not drive due to her pain 10 medications and would have difficulty using steps to ride public 11 transportation (A.R. 39). 12 assistance and some dressing assistance (A.R. 45). 13 prepare simple meals that do not require standing too long (A.R. 45). 14 Reportedly, Plaintiff then was taking two or three naps or rest breaks 15 per day for an hour or two each (A.R. 54). 16 shop only with the assistance of electric chairs because she has 17 problems walking more than 100 yards due to lower back and tailbone 18 pain (A.R. 46, 54). 19 minutes (A.R. 54).11 Plaintiff claimed that she needs bathing She said she could Plaintiff said she could Plaintiff said she could barely sit for 15 20 21 22 23 24 25 26 27 28 11 Plaintiff’s written reports reflect worsening pain over time, consistent with the medical source observations. In an Exertion Questionnaire dated September 29, 2011, Plaintiff reported that she lives with her parents and does no housekeeping (A.R. 249-51). She stated that she can cook but must take many breaks to sit, can sit no longer than 20 minutes and can stand no longer than 15 minutes due to her pain (A.R. 249, 251). She reported that she could walk 15 to 20 yards before she is in “a lot” of pain, and that she uses a wheelchair when she goes somewhere that requires her to walk a long distance (A.R. 249, 251). She reported that she uses a cane daily (A.R. 251). Plaintiff stated that she could drive a car five to 10 miles to her doctor appointments every four to six weeks (A.R. 250). She (continued...) 16 1 The ALJ rejected Plaintiff’s pain testimony: (1) as supposedly 2 contradicted by “[e]xamination results”; and (2) for “failure to 3 pursue all available pain treatment modalities” (i.e., more epidural 4 injections, using a TENS unit, or “chiropractic adjustment”) (A.R. 5 19). 6 7 8 9 10 11 12 13 11 (...continued) stated that she tries to get at least a 30 minute nap during the day (A.R. 251). Plaintiff then was taking Flexeril (a muscle relaxant) and Lortab (Vicodin) for her pain (A.R. 251). In a Disability Report - Appeal form dated January 18, 2012, Plaintiff reported that her pain had increased and continues to radiate down both legs, and that she has right hip pain which makes it difficult for her to sit or stand too long (A.R. 25256). She reported spending more time at home due to limitations from her pain (A.R. 252, 256). By then, Plaintiff indicated that she was not driving anymore (A.R. 255). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In a Disability Report - Appeal form dated June 27, 2012, Plaintiff reported that because of back spasm and tailbone pain, she cannot walk farther than 50 yards, and that her pain is worse on her right side, which requires her to sit and lean on her left side (A.R. 262-68). She reportedly was unable to go anywhere alone without assistance (A.R. 262). She reported that she could not sit for “any length of time” (A.R. 266). In a “Written Questions to Claimant (Adult)” form dated January 16, 2013, Plaintiff reported that her medications had rendered her unable to drive or concentrate (A.R. 281-88; see also A.R. 294-301 (follow up form dated April 26, 2013, reporting similar answers)). She indicated that she could drive to her attorney’s office but “in general” does not drive (A.R. 282). Plaintiff thought she could lift less than 10 pounds, stand and walk less than two hours in an eight hour day, and sit less than six hours in an eight hour day (A.R. 284-85). She indicated that she uses a cane and cannot sit or stand longer than 15-20 minutes, and cannot bend (A.R. 285). She reported that her pain is always present and is getting worse (A.R. 286). She also reported that her medication does not allow her to concentrate, and, if she fails to take her medication, her pain prevents her from concentrating (A.R. 287). Plaintiff indicated that when she is hurting, she can only lie down or recline (A.R. 287). She reportedly was taking Norco, Neurontin, and Zanaflex (A.R. 292). 17 1 With regard to the first stated reason, a failure of the medical 2 record to corroborate fully a claimant’s subjective symptom testimony 3 is not, by itself, a legally sufficient basis for rejecting such 4 testimony. 5 2001); Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988); Cotton 6 v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch v. 7 Barnhart, 400 F.3d at 681. 8 “[e]xamination results” supposedly contradicting Plaintiff’s 9 statements lacks the requisite specificity. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. The ALJ’s general reference to To the extent the ALJ did 10 cite specifics, the specifics fail adequately to support the ALJ’s 11 conclusion. 12 the ALJ may have shown normal posture, gait, and ambulation at that 13 time (A.R. 543), but other, more recent examinations reflect: (1) mild 14 antalgic gait, referable to the right, with the use of a cane (A.R. 15 767 (March 24, 2010 exam); (2) a gait with “diminished cadence and 16 velocity” (A.R. 836 (October 23, 2011 exam)); and (3) moderately 17 antalgic gait favoring the left with the use of a cane (A.R. 710 18 (February 2, 2011 exam)). The early examination record from May of 2009 cited by 19 20 With regard to the second stated reason, a limited course of 21 treatment sometimes can justify the rejection of a claimant’s 22 testimony, at least where the testimony concerns physical problems. 23 See, e.g., Burch v. Barnhart, 400 F.3d at 681 (lack of consistent 24 treatment such as where there was a three to four month gap in 25 treatment properly considered in discrediting claimant’s back pain 26 testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (in 27 assessing the credibility of a claimant’s pain testimony, the 28 Administration properly may consider the claimant’s failure to request 18 1 treatment and failure to follow treatment advice) (citing Bunnell v. 2 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v. 3 Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility 4 factors in assessing pain testimony include limited treatment and 5 minimal use of medications); see also Johnson v. Shalala, 60 F.3d 6 1428, 1434 (9th Cir. 1995) (absence of treatment for back pain during 7 half of the alleged disability period, and evidence of only 8 “conservative treatment” when the claimant finally sought treatment, 9 sufficient to discount claimant’s testimony). 10 11 Here, however, no doctor opined that Plaintiff should receive 12 additional epidural injections for her pain; her previous injections 13 had failed to provide enduring relief. 14 Plaintiff should use a TENS unit or seek chiropractic adjustment for 15 her condition. 16 treatment suggestions, including physical therapy, narcotic pain 17 medication, multiple epidural injections, and surgery. 18 not qualified to determine on his own that Plaintiff had any available 19 additional or different treatment options. 20 or her own lay opinion regarding medical matters. 21 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ who is not 22 qualified as a medical expert cannot make “his own exploration and 23 assessment as to [the] claimant’s physical condition”); see also Rohan 24 v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ may not rely on 25 his or her own lay opinion regarding medical matters); Ferguson v. 26 Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) (same); cf. Rudder v. 27 Colvin, 2014 WL 3773565, at *12 (N.D. Ill. July 30, 2014) (“The ALJ 28 may be correct that disabling limitations from multiple sclerosis Nor did any doctor opine that To the contrary, it appears Plaintiff followed all 19 The ALJ was An ALJ may not rely on his See Day v. 1 would result in more frequent treatment or need for medication. 2 However, the ALJ must include evidence to support such a conclusion in 3 his opinion because he is not qualified, on his own, to make such 4 determinations.”) (citations and quotations omitted). 5 6 Finally, the ALJ erred by failing specifically to address the 7 alleged side effects of Plaintiff’s pain medication. When a claimant 8 testifies to side effects that “are in fact associated with the 9 claimant’s medication(s),” the ALJ may not disregard such testimony 10 unless the ALJ makes “specific findings similar to those required for 11 excess pain testimony.” 12 also 20 C.F.R. § 404.1529(c)(3)(iv) (“We will consider . . . side 13 effects of any medication you take or have taken to alleviate your 14 pain or other symptoms”); Social Security Ruling 96-7p (mandating 15 consideration of “side effects of any medications the individual takes 16 or has taken to alleviate pain or other symptoms”); Cooley v. Astrue, 17 2011 WL 2554222, at *5 & n.4 (C.D. Cal. June 27, 2011) (ALJ erred in 18 failing to consider side effect of Norco, which claimant alleged 19 caused her to feel drowsy/tired and to lose focus). 20 case, the ALJ failed to mention Plaintiff’s testimony concerning the 21 allegedly debilitating side effects of her medication. 22 necessarily failed to state legally sufficient reasons for implicitly 23 finding such testimony not credible. Varney v. Secretary, 846 F.2d at 585; see In the present Thus, the ALJ 24 25 In attempting to defend the ALJ’s adverse credibility finding, 26 Defendant characterizes the ALJ’s decision as having found that 27 Plaintiff’s medical treatment was “routine and conservative.” 28 Defendant’s Motion, pp. 8-9. To the extent Defendant’s 20 See 1 characterization seeks to provide a reason additional to or different 2 from those reasons expressly stated by the ALJ, the characterization 3 must fail. 4 to state expressly as reasons for rejecting Plaintiff’s credibility. 5 See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court 6 “cannot affirm the decision of an agency on a ground that the agency 7 did not invoke in making its decision”); see also Treichler v. 8 Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014) (for meaningful 9 appellate review, “we require the ALJ to specifically identify the Defendant cannot properly suggest specifics the ALJ failed 10 testimony . . . she or he finds not credible . . . and explain what 11 evidence undermines the testimony”) (citations and quotations 12 omitted). 13 narcotic pain medication, epidural injections, and surgery) does not 14 appear to have been “routine or conservative.” 15 Colvin, 2013 WL 1319667, at *4 (C.D. Cal. March 29, 2013) (“Surgery is 16 not conservative treatment”); Aguilar v. Colvin, 2014 WL 3557308, at 17 *8 (C.D. Cal. July 18, 2014) (“there is evidence in the record that 18 Plaintiff has been prescribed narcotic medications, such as Vicodin. 19 . . . 20 conservative treatment when he has been prescribed strong narcotic 21 pain medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. 22 Cal. Sept. 16, 2011) (refusing to categorize as “conservative” 23 treatment including use of narcotic pain medication and epidural 24 injections). 25 /// 26 /// 27 /// 28 /// In any event, Plaintiff’s treatment (which has included See, e.g., Sanchez v. It would be difficult to fault Plaintiff for overly 21 1 IV. Remand is Appropriate. 2 3 Remand is appropriate because the circumstances of this case 4 suggest that further administrative review could remedy the ALJ’s 5 errors. 6 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) 7 (remand is an option where the ALJ fails to state sufficient reasons 8 for rejecting a claimant’s excess symptom testimony); but see Orn v. 9 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (citing Connett for the McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 10 proposition that “[w]hen an ALJ’s reasons for rejecting the claimant’s 11 testimony are legally insufficient and it is clear from the record 12 that the ALJ would be required to determine the claimant disabled if 13 he had credited the claimant’s testimony, we remand for a calculation 14 of benefits”) (quotations omitted); see also Brown-Hunter v. Colvin, 15 2015 WL 4620123, at *7-8 (9th Cir. Aug, 4, 2015) (discussing the 16 requirements for the “extreme remedy” of crediting testimony as true 17 and remanding for an immediate award of benefits); Ghanim v. Colvin, 18 763 F.3d 1154, 1166 (9th Cir. 2014) (remanding for further proceedings 19 where the ALJ failed to state sufficient reasons for deeming a 20 claimant’s testimony not credible); Garrison v. Colvin, 759 F.3d 995, 21 1021 (9th Cir. 2014) (court may “remand for further proceedings, even 22 though all conditions of the credit-as-true rule are satisfied, [when] 23 an evaluation of the record as a whole creates serious doubt that a 24 claimant is, in fact, disabled”); Vasquez v. Astrue, 572 F.3d 586, 25 600-01 (9th Cir. 2009) (a court need not “credit as true” improperly 26 rejected claimant testimony where there are outstanding issues that 27 must be resolved before a proper disability determination can be 28 made); see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon 22 1 reversal of an administrative determination, the proper course is to 2 remand for additional agency investigation or explanation, except in 3 rare circumstances); Treichler v. Commissioner, 775 F.3d at 1101 n.5 4 (remand for further administrative proceedings is the proper remedy 5 “in all but the rarest cases”).12 6 7 CONCLUSION 8 9 For all of the foregoing reasons,13 Plaintiff’s and Defendant’s 10 motions for summary judgment are denied and this matter is remanded 11 for further administrative action consistent with this Opinion. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: September 30, 2015. 16 17 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 12 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff’s testimony were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 13 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with the directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” See Garrison v. Colvin, 759 F.3d at 1021. 23
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