Sherry A. Facciuto v. Carolyn W. Colvin, No. 2:2015cv03894 - Document 29 (C.D. Cal. 2016)
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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Sherry A. Facciuto v. Carolyn W. Colvin Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SHERRY A. FACCIUTO, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. CV 15-3894-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 May 22, 2015, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on July 29, 2016. 28 Plaintiff filed a motion for summary judgment on March 10, 2016. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on June 15, 2016. The 2 Court has taken the motions under submission without oral argument. 3 See L.R. 7-15; “Order,” filed August 19, 2015. 4 5 BACKGROUND 6 7 Plaintiff asserts disability since April 1, 2006, based on 8 alleged low back pain, anxiety, hyperlipidemia, hypothyroidism, 9 hypertension, migraine headaches, and frequent urinary tract 10 infections (Administrative Record (“A.R.”) 53-55, 284). Plaintiff 11 testified that she suffers from back pain and other symptoms of 12 allegedly disabling severity (A.R. 55-74). 13 14 The Administrative Law Judge (“ALJ”) found Plaintiff has severe 15 degenerative disc disease of the lumbar spine and migraines (A.R. 16 23).1 17 functional capacity to perform a limited range of light work, 18 including Plaintiff’s past relevant work as a reception clerk, 19 phlebotomist, file clerk, and medical assistant (A.R. 26-29 (adopting 20 vocational expert testimony at A.R. 80-82)). 21 Plaintiff’s contrary testimony “not entirely credible” (A.R. 27). 22 ALJ therefore found Plaintiff not disabled (A.R. 29). 23 Council denied review (A.R. 1-6). 24 /// 25 /// However, the ALJ also found Plaintiff retains the residual The ALJ deemed The Appeals 26 27 28 1 The ALJ found “non-severe” Plaintiff’s alleged hyperlipidemia, hypothyroidism, anxiety, and depression (A.R. 2425). 2 The 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 9 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. 10 Substantial evidence is “such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion.” 12 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 13 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 I. 4 The ALJ’s Stated Reasons for Rejecting Plaintiff’s Credibility are Legally Insufficient. 5 6 Plaintiff testified, inter alia, she has back pain every day, all 7 day, in her lower back and on the right side above her waist which 8 radiates down to her calf when she sleeps (A.R. 56-57). 9 also testified she has intermittent back spasms (A.R. 71-72). Plaintiff 10 Plaintiff claimed that on an average day she must lie down to relieve 11 her pain and spasms four or five times for 30 to 60 minutes each time 12 (A.R. 73-74). 13 14 Where, as here, an ALJ finds that a claimant’s medically 15 determinable impairments reasonably could be expected to cause the 16 symptoms alleged (A.R. 27), the ALJ may not discount the claimant’s 17 testimony regarding the severity of the symptoms without making 18 “specific, cogent” findings, supported in the record, to justify 19 discounting such testimony. 20 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 21 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 22 (indicating that ALJ must state “specific, clear and convincing” 23 reasons to reject a claimant’s testimony where there is no evidence of 24 /// 25 /// 26 /// 27 /// 28 /// See Berry v. Astrue, 622 F.3d 1228, 1234 4 1 malingering).2 2 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ’s 3 credibility findings “must be sufficiently specific to allow a 4 reviewing court to conclude the ALJ rejected the claimant’s testimony 5 on permissible grounds and did not arbitrarily discredit the 6 claimant’s testimony”) (internal citations and quotations omitted); 7 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 8 must “specifically identify the testimony [the ALJ] finds not to be 9 credible and must explain what evidence undermines the testimony”); 10 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 11 which symptom testimony is not credible and what facts in the record 12 lead to that conclusion.”); see also Social Security Ruling 96-7p.3 Generalized, conclusory findings do not suffice. See 13 14 15 Here, the ALJ rejected Plaintiff’s credibility “for the reasons explained in this decision,” stating: 16 17 18 In terms of the claimant’s alleged impairments, her testimony concerning her symptoms was grossly exaggerated. 19 20 21 22 23 24 25 26 27 28 2 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); 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. 3 Social security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 5 1 She was able to drive herself to the hearing, although she 2 said her son or a friend usually drives her [A.R. 43]. 3 testified she can take care of her own personal hygiene but 4 it takes longer [A.R. 63]. 5 [A.R. 63]. 6 clean [A.R. 65-66]. 7 fold clothes [A.R. 65]. 8 minutes then has to lie down or sit for 30 minutes [A.R. 9 66]. She She uses no assistive device She can prepare food in a microwave but does not She does not do laundry other than to She can wash dishes for fifteen She does not grocery shop [A.R. 67]. 10 11 The claimant is able to take the train to Ventura to 12 visit her daughter riding 12 hours but said she was able to 13 do it because the seats recline and she can walk around 14 [A.R. 67-68]. 15 68].4 16 grandchildren for a week at a time [A.R. 68]. 17 stays with and socializes with her daughter’s mother in law 18 while there [A.R. 68, 75-76]. 19 anxiety attack[s] a week even when she does not go anywhere 20 [A.R. 69-70]. 21 study for phlebotomy and her CNA courses but contends she 22 does not comprehend when reading a magazine [A.R. 76-77]. 23 She alleges that she has back spasms, applies ice and has to 24 lie down for an hour [A.R. 71-72]. 25 minutes, stand for 15-20 minutes and sit for 30-60 minutes She makes this trip every 1-2 months [A.R. She visits her daughter[,] son in law and She also She alleges she has 2-3 She has been able to pass the courses of She can walk 15-20 26 27 28 4 Plaintiff actually testified that she tries to go to her daughter’s home once every two months, not every 1-2 months (A.R. 68). 6 1 [A.R. 72].5 She uses a TENS unit for pain [A.R. 72].6 2 alleges that she has disturbed sleep 3-4 times a month and 3 wakes up with panic attacks and her heart racing [A.R. 74].7 4 She alleges that she has migraines for which she takes over 5 the counter generic medication which make the headaches go 6 away after 30-45 minutes [A.R. 60] (Testimony). 7 December 11, 2008, her treatment record indicated she needed 8 a supply of medication because she was traveling to Hawaii 9 for three months [citing A.R. 421]. She On 10 11 (A.R. 27). The ALJ did not mention specifically Plaintiff’s testimony 12 that she has to lie down four or five times a day for 30 to 60 minutes 13 each time (A.R. 73-74). 14 15 It thus appears that the ALJ discounted Plaintiff’s credibility 16 based on her reported daily activities and on asserted inconsistencies 17 /// 18 /// 19 /// 20 /// 21 22 23 24 25 26 27 28 5 Plaintiff testified that she can stand 15 minutes before needing to sit with her feet elevated to relieve pain (A.R. 72-73). However, sitting for extended times also reportedly causes her pain (A.R. 73). 6 The record also reflects that Plaintiff was taking Vicodin regularly for her pain and Soma for her muscle spasms (see A.R. 390-92, 510). 7 Plaintiff actually testified that she wakes up three or four times a night and could not remember getting a good night’s sleep “in a long time” (A.R. 74). 7 1 in the record.8 The ALJ’s stated reasoning is legally insufficient. 2 3 First, Plaintiff’s limited daily activities do not support the 4 ALJ’s adverse credibility determination. See, e,g., Vertigan v. 5 Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (“Vertigan”) (“the mere 6 fact that a plaintiff has carried on certain daily activities, such as 7 grocery shopping, driving a car, or limited walking for exercise, does 8 not in any way detract from her credibility as to her overall 9 disability”); Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 10 1984) (“Gallant”) (fact that claimant could cook for himself and 11 family members as well as wash dishes did not preclude a finding that 12 claimant was disabled due to constant back and leg pain); see also 13 Burrell v. Colvin, 775 F.3d at 1138 (reversing adverse credibility 14 determination where “the ALJ did not elaborate on which daily 15 activities conflicted with which part of Claimant’s testimony”). 16 Social Security Act does not require that claimants be utterly 17 incapacitated to be eligible for benefits, and many home activities 18 may not be easily transferable to a work environment where it might be 19 impossible to rest periodically or take medication.” 20 Chater, 80 F.3d at 1283 n.7. 21 Plaintiff performed activities which would translate to sustained 22 activity in a work setting on a regular and continuing basis for eight 23 /// Smolen v. The record does not reflect that 24 25 26 27 28 “The 8 In evaluating a claimant’s credibility, an ALJ may consider evidence of inconsistencies. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations omitted); see also Bray v. Commissioner of Social Sec. Admin., 554 F.3d 1219, 122627 (9th Cir. 2009); Smolen v. Chater, 80 F.3d at 1284; 20 C.F.R. §§ 404.1529, 416.929. 8 1 hours a day, five days a week.9 2 3 Second, to the extent the ALJ considered as a significant part of 4 Plaintiff’s daily activities the fact that Plaintiff travels by train 5 once every two months to visit family, or the fact that she once spent 6 three months in Hawaii, substantial evidence does not suggest that 7 these activities would translate to regular sustained work activity. 8 Plaintiff testified that when she takes the train she can lie down 9 fully and get up and move around at will (A.R. 67-68). While with her 10 family, she reportedly socializes for only approximately an hour a day 11 before going to a spare bedroom in her in-law’s house to lie down 12 (A.R. 76). 13 Plaintiff’s activities during her trip to Hawaii. There is no information in the record concerning 14 15 Third, the only arguable inconsistencies the Court can glean from 16 the ALJ’s discussion of the record are: (1) Plaintiff’s purported 17 testimony that she “does not comprehend when reading a magazine,” yet 18 9 19 20 21 22 23 24 25 26 27 28 In Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (“Burch”), the Ninth Circuit upheld an ALJ’s rejection of a claimant’s credibility in partial reliance on the claimant’s daily activities of cooking, cleaning, shopping, interacting with others and managing her own finances and those of her nephew. In doing so, the Ninth Circuit did not purport to depart from the general rule that an ALJ may consider daily living activities in the credibility analysis only where “a claimant engages in numerous daily activities involving skills that could be transferred to the workplace.” Id. at 681. Undeniably, however, it is difficult to reconcile the result in Burch with the results in cases like Vertigan and Gallant. Certainly, “the relevance of a claimant carrying on daily activities should be evaluated on a case-by-case basis.” Bloch on Social Security § 3.37 (Jan. 2005). In the present case, in light of the seemingly conflicting Ninth Circuit case law as well as the evidence in the record suggesting Plaintiff engages in only limited daily activities, this Court does not believe Burch compels affirmance. 9 1 was able to pass phlebotomy and CNA courses; and (2) Plaintiff’s 2 testimony that she has anxiety attacks two to three times a week, yet 3 can travel to Hawaii and can visit with her family once every two 4 months (A.R. 27). 5 these alleged inconsistencies. 6 incapable of comprehending when reading; Plaintiff testified that she 7 “always had a hard time comprehending reading and having it stay in 8 [her] mind,” and that she had read “probably” three books for pleasure 9 in her whole life (A.R. 76-77). The record does not support the significance of Plaintiff did not testify that she is Plaintiff admitted that she had to 10 read and understand to get through her training, and explained that 11 she had a “very hard” time passing the courses (A.R. 76-78). 12 Plaintiff’s admitted difficulty with reading comprehension is not 13 necessarily inconsistent with her ability to pass the referenced 14 courses. 15 limitations from her anxiety attacks which would prevent her from 16 traveling as she sometimes did. 17 gets anxiety attacks her chest hurts, her heart starts beating fast, 18 and she gets light headed (A.R. 62). 19 regularly to manage her anxiety (A.R. 62-63). 20 Plaintiff’s twice weekly anxiety attacks are not inconsistent with an 21 ability to travel once every two months to visit family or an ability 22 to spend time in Hawaii. Similarly, Plaintiff did not claim any functional Plaintiff testified that when she She takes Valium and Ziprasidone As described, 23 24 The ALJ did not specify the objective medical record as a stated 25 reason for discounting Plaintiff’s credibility (A.R. 27). 26 extent the ALJ may have relied on the medical record to discount 27 Plaintiff’s credibility, a lack of objective medical evidence “can be 28 a factor” in discounting a claimant’s credibility, but cannot “form 10 To the 1 the sole basis.” See Burch v. Barnhart, 400 F.3d at 681. 2 Additionally, the ALJ would have had to make a specific finding 3 identifying the testimony the ALJ found not credible and linking the 4 rejected testimony to parts of the medical record supporting the ALJ’s 5 non-credibility determination. 6 487, 494 (9th Cir. 2015) (holding it was legal error for ALJ to fail 7 to make such a link) (citations omitted). 8 in the present case. See Brown-Hunter v. Colvin, 806 F.3d The ALJ made no such link 9 10 Defendant cites to other potential reasons for discounting 11 Plaintiff’s credibility (e.g., Plaintiff’s allegation that she was 12 unable to work as of April 1, 2006, despite an indication that 13 Plaintiff engaged in substantial gainful activity for three months in 14 2010, Plaintiff’s alleged failure to see a specialist for her back 15 pain (she did see a pain management specialist (A.R. 356-60)), and 16 Plaintiff’s alleged failure to seek mental health treatment) (see 17 Defendant’s Motion, pp. 7-8). 18 reasons for discounting Plaintiff’s credibility, the Court cannot 19 uphold the credibility determination on the basis of such reasons. 20 Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (the court 21 “cannot affirm the decision of an agency on a ground that the agency 22 did not invoke in making its decision”). Because the ALJ did not state such 23 24 The Court is unable to conclude that the ALJ’s failure to state 25 legally insufficient reasons for discounting Plaintiff’s credibility 26 was harmless. 27 inconsequential to the ultimate non-disability determination.” 28 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and “[A]n ALJ’s error is harmless where it is 11 Molina 1 quotations omitted). Here, the vocational expert testified that if 2 someone needed to sit or lie down two times a work day for 15-minute 3 breaks – which is a need less extreme than Plaintiff claimed - that 4 person would not be able to do any of Plaintiff’s past relevant work 5 (A.R. 82). 6 a person could perform (A.R. 79-83). The vocational expert did not identify any other work such 7 8 II. Remand for Further Administrative Proceedings is Appropriate. 9 10 Because the circumstances of the case suggest that further 11 administrative review could remedy the ALJ’s error, remand is 12 appropriate. 13 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) 14 (remand is an option where the ALJ fails to state sufficient reasons 15 for rejecting a claimant’s excess symptom testimony); but see Orn v. 16 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 17 cite Connett for the proposition that “[w]hen an ALJ’s reasons for 18 rejecting the claimant’s testimony are legally insufficient and it is 19 clear from the record that the ALJ would be required to determine the 20 claimant disabled if he had credited the claimant’s testimony, we 21 remand for a calculation of benefits”) (quotations omitted); see also 22 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the 23 district court concludes that further administrative proceedings would 24 serve no useful purpose, it may not remand with a direction to provide 25 benefits”); Brown-Hunter v. Colvin, 806 F.3d at 495-96 (discussing the 26 evidently narrow circumstances in which a court will order a benefits 27 calculation rather than further proceedings); Ghanim v. Colvin, 763 28 F.3d 1154, 1166 (9th Cir. 2014) (remanding for further proceedings McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see 12 1 where the ALJ failed to state sufficient reasons for deeming a 2 claimant’s testimony not credible); Garrison v. Colvin, 759 F.3d 995, 3 1021 (9th Cir. 2014) (court may “remand for further proceedings, even 4 though all conditions of the credit-as-true rule are satisfied, [when] 5 an evaluation of the record as a whole creates serious doubt that a 6 claimant is, in fact, disabled”); Vasquez v. Astrue, 572 F.3d 586, 7 600-01 (9th Cir. 2009) (agreeing that a court need not “credit as 8 true” improperly rejected claimant testimony where there are 9 outstanding issues that must be resolved before a proper disability 10 determination can be made); see generally INS v. Ventura, 537 U.S. 12, 11 16 (2002) (upon reversal of an administrative determination, the 12 proper course is remand for additional agency investigation or 13 explanation, except in rare circumstances); Treichler v. Commissioner, 14 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for further 15 administrative proceedings is the proper remedy “in all but the rarest 16 cases”). 17 18 CONCLUSION 19 For the foregoing reasons,10 Plaintiff’s and Defendant’s 20 21 motions for summary judgment are denied and this matter is remanded 22 /// 23 /// 24 /// 25 26 10 27 28 The Court has not reached any other issues raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 13 1 for further administrative action consistent with this Opinion. 2 3 LET JUDGMENT BE ENTERED ACCORDINGLY. 4 5 DATED: August 12, 2016. 6 7 8 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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