Michelle Marie Thompson v. Carolyn W. Colvin, No. 2:2015cv09608 - Document 18 (C.D. Cal. 2016)
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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Michelle Marie Thompson v. Carolyn W. Colvin Doc. 18 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 MICHELLE MARIE THOMPSON, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) No. CV 15-9608 AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 I. PROCEEDINGS 23 24 On 25 July 14, 2011, Plaintiff Michelle Marie Thompson applied for supplemental security 26 (“Plaintiff”) income benefits, 27 alleging a disabling condition beginning February 1, 2010. (AR 135- 28 41). On February 12, 2014, Administrative Law Judge (“ALJ”) Robert 1 Dockets.Justia.com 1 A. Evans examined the records and heard testimony from Plaintiff and 2 vocational expert (“V.E.”) Elizabeth G. Brown-Ramos. 3 March 4 decision. 5 ALJ’s decision. 6, 2014, the ALJ (AR 14-24). denied Plaintiff (AR 29-44). benefits in a On written The Appeals Council denied review of the (AR 1-4). 6 7 On December 14, 2015, Plaintiff filed a Complaint pursuant to 8 42 U.S.C. §§ 405(g) and 1383(c) alleging that the Social Security 9 Administration erred in denying benefits. (Docket Entry No. 1). On 10 April 28, 2016, Defendant filed an Answer to the Complaint, (Docket 11 Entry 12 (Docket Entry No. 15). 13 a United States Magistrate Judge. 14 July 20, 2016, the parties filed a Joint Stipulation (“Joint Stip.”) 15 setting 16 (Docket Entry No. 17). No. 14), forth and the their Certified Administrative Record (“AR”), The parties have consented to proceed before respective (Docket Entry Nos. 11, 12). positions on Plaintiff’s On claims. 17 II. SUMMARY OF ALJ’S DECISION 18 19 The ALJ applied the five-step process in evaluating Plaintiff’s 20 21 case. (AR 14-16). 22 had not engaged in substantial gainful activity after the application 23 date. 24 impairments included chronic right knee pain, osteoarthritis, chronic 25 low back pain, depressive disorder and morbid obesity. 26 step three, the ALJ found that Plaintiff’s impairments did not meet 27 or equal a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 28 1. (AR 16). At step one, the ALJ determined that Plaintiff At step two, the ALJ found that Plaintiff’s severe (AR 16-17). 2 (AR 16). At 1 Before proceeding to step four, the ALJ found that Plaintiff had 2 the residual functional capacity (“RFC”) to perform sedentary work 3 with the further limitations that Plaintiff could “understand and 4 follow simple instructions” and should not “deal directly with the 5 public.” 6 Plaintiff’s 7 limiting effects of her impairments were not credible because her 8 statements were inconsistent with objective medical evidence, her 9 self-reported daily activities, and her behavior during the hearing. 19, (See AR 17). In making his RFC finding, the ALJ ruled that statements also to the opinions 12 consultative psychiatric examiner Stephan Simonian, M.D. 13 The 14 alia, 15 instruction [and] to relate to and interact with her supervisors, co- 16 workers, and the public” and assigned the opinion moderate weight. 17 (AR 21-22). “moderately Dr. of Simonian’s limited ability the various opinion to do medical evidence and assigned characterized summarized persistence, 11 a ALJ intensity, (AR weight The the 10 ALJ 22). regarding physicians, as including (AR 19-22). assessing, detailed and and inter complex 18 19 At steps four and five, the ALJ determined that Plaintiff was 20 unable to perform past relevant work but that she could seek work as 21 an addresser, a bonder (electronics), or a touch-up screener. (AR 22 22-24). not 23 disabled within the meaning of the Social Security Act. Accordingly, the ALJ determined that Plaintiff was (AR 24). 24 25 III. STANDARD OF REVIEW 26 27 This court reviews the Administration’s decision to determine if 28 the decision is free of legal error and supported by substantial 3 1 evidence. 2 1157, 1161 (9th Cir. 2012). 3 mere scintilla, but less than a preponderance. 4 759 F.3d 995, 1009 (9th Cir. 2014). 5 evidence supports a finding, “a court must consider the record as a 6 whole, 7 detracts 8 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 9 omitted). 10 affirming 11 substitute [its] judgment for that of the ALJ.” 12 Admin., 466 F.3d 880, 882 (9th Cir. 2006). See Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d weighing from the As or both a “Substantial evidence” is more than a evidence To determine whether substantial that [Commissioner’s] result, reversing “[i]f the the ALJ’s Garrison v. Colvin, supports and evidence conclusion.” evidence can conclusion, [a that Aukland support court] v. either may not Robbins v. Soc. Sec. 13 14 IV. PLAINTIFF’S CONTENTIONS 15 16 Plaintiff raises two claims of error. First, Plaintiff claims 17 that 18 assessment 19 assessed by Dr. Simonian in the RFC. 20 Second, Plaintiff claims that the ALJ failed to provide clear and 21 convincing reasons for rejecting her testimony as not fully credible. 22 (Id. at 15-18, 23-26). the ALJ improperly without rejected explanation and portions failed to of Dr. Simonian’s include limitations (Joint Stip. at 4-10, 13-15). 23 24 V. DISCUSSION 25 26 After reviewing the record, the Court finds that Plaintiff’s 27 second claim warrants remand for further consideration. 28 declines to address Plaintiff’s other claim. 4 The Court 1 A. The ALJ’s Rejection Of Plaintiff’s Excess Pain Testimony Is Not 2 Supported By Substantial Evidence 3 4 A claimant initially must produce objective medical evidence 5 establishing a medical impairment reasonably likely to be the cause 6 of her subjective symptoms. 7 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 8 1991). Once a claimant produces objective medical evidence of an 9 underlying impairment that could reasonably be expected to produce or other 10 pain 11 malingering, the ALJ may reject the claimant’s testimony regarding 12 the severity of her pain and symptoms only by articulating specific, 13 clear and convincing reasons for doing so. 14 806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue, 15 504 F.3d 1028, 1036 (9th Cir. 2007)). 16 no 17 standard applies. evidence of symptoms Smolen v. Chater, 80 F.3d 1273, 1281 alleged, malingering, the and there is no evidence of Brown-Hunter v. Colvin, In this case, because there is “clear and convincing reasons” 18 19 Several portions of the administrative record are relevant to 20 Plaintiff’s claim that the ALJ erroneously rejected her “excess pain” 21 testimony. 22 Questionnaire, Plaintiff reported that she used crutches to walk, 23 struggled to stand in the shower, and generally took the bus anywhere 24 that she needed to go. 25 move” was painful and that she also experienced pain if she sat for 26 too long. 27 the dishes if she sat while doing so and that, twice a month, she 28 shopped for groceries with the assistance of her son and a mobility (Joint (AR 165). Stip. at 15-18, (AR 165). 23-26). In a 2011 Exertion Plaintiff claimed that “every Plaintiff further reported that she could wash 5 1 scooter. 2 for “about an hour” before pain prevented her from performing further 3 work. 4 hours” every day. (AR 166). (AR 167). Plaintiff claimed that she could do housework Plaintiff reported that she napped “maybe 2-3 (AR 167). 5 6 In a 2012 Adult Function Report, Plaintiff reported that it took 7 her thirty minutes to stand up each morning and that she had to walk 8 with a cane. 9 and a half hours to “wash up” every morning and that her ailments 10 generally prevented her from standing while dressing, bathing, caring 11 for 12 acknowledged that she was able to prepare sandwiches, frozen dinners, 13 salads, turkey burgers, and foods prepared in a toaster oven. 14 192). 15 to her difficulty standing and that it took her two and a half hours 16 to cook. 17 paratransit program, to go out at least three times a week and that 18 she shopped for groceries four times per month with the assistance of 19 a helper and a mobility scooter. 20 that she could pay bills, count change, handle a savings account, and 21 use a checkbook and money orders. 22 she went to the movies once a month and to church “when [she felt] 23 like giving up.” her (AR 190). hair, Plaintiff stated that it also took her two shaving, and cooking. (AR 191). Plaintiff (AR Plaintiff stated that she sometimes prepared food weekly due (AR 192). Plaintiff claimed that she “use[d] Access,” a (AR 193). Plaintiff acknowledged (AR 193). Plaintiff stated that (AR 194). 24 25 During her hearing, Plaintiff testified that she had last worked 26 in 2005 but had gotten “hurt” in 2009. 27 brought a walker to the hearing, and she testified that she was 28 unable to walk without the walker or a cane, although recently the 6 (AR 32-34). Plaintiff 1 cane had not been giving her sufficient support. 2 testified that, although she was able to shower by herself, she 3 sometimes 4 Plaintiff also testified that she could sit for about an hour at a 5 time before needing to stand and walk around using the walker. 6 35-36). 7 could stand without walking for about 45 minutes at the longest. 8 36). 9 there,” even with medication. had to sit on a railing in the (AR 34). shower. Plaintiff (AR 34-35). (AR Plaintiff further testified that, using the walker, she (AR Plaintiff clarified that her pain was “ongoing” and “always ailments prevented her (AR 36). Plaintiff also testified that 10 her from “go[ing] 11 somebody, walk[ing], you know, whatever.” out, hav[ing] fun with (AR 37). 12 13 14 The ALJ rejected Plaintiff’s pain testimony in the following excerpt: 15 16 After careful 17 finds that [Plaintiff’s] medically determinable impairments 18 could reasonably be expected to cause the alleged symptoms; 19 however, [Plaintiff’s] statements concerning the intensity, 20 persistence, and limiting effects of her symptoms are not 21 credible 22 [RFC]. 23 activities 24 meals 25 burgers), using Access to get around, shopping with the use 26 of a scooter, occasionally attending church, paying bills, 27 counting change, handling a savings account, and using a to consideration the First, of (i.e., extent the daily of they [ALJ] living, sandwiches, the are 7 inconsistent notes that including frozen 28 evidence, the with the [Plaintiff’s] preparing meals, [ALJ] salad, simple turkey 1 checkbook/money order, for example, are inconsistent with 2 her allegation of total disability. 3 4 The medical evidence of record also does not substantiate 5 [Plaintiff’s] 6 [Plaintiff’s] complaints regarding the frequency, severity 7 and duration of her back pain, neck pain, knee pain, and 8 obesity do not justify any further limitations than those 9 based on the objective medical evidence and are generally allegations with disabling limitations consistent 11 absence 12 allegations, the ALJ gives minimal weight to [Plaintiff’s] 13 testimony as to a total preclusion as to all work during 14 the 15 accommodated 16 [Plaintiff] 17 however, as discussed below, the [V.E.] testified that the 18 use of a cane would NOT affect the sedentary jobs noted by 19 the [V.E.]. [. . .] objective adjudicative period. in was medical the noted evidence These [RFC] to found. use to . .] walker in at In support allegations adopted a [. limitations. 10 of the of are this the the these well case. hearing, 20 21 Additionally, after carefully observing [Plaintiff] at the 22 hearing, the [ALJ] further notes that her verbal responses 23 and overall demeanor were not suggestive of a person who is 24 experiencing 25 observations are just one of many factors that the [ALJ] 26 has considered, she was able to enter and exit the hearing 27 room without much difficulty, and to answer questions, all 28 despite her alleged disabling limitations. disabling limitations. 8 While these 1 (AR 2 omitted)). 19, 22 (complete summary of medical evidence and citations 3 The 4 ALJ’s adverse credibility finding is not supported by 5 substantial evidence. 6 Plaintiff’s 7 necessary to secure and maintain employment. 8 relied 9 activities but failed to note that Plaintiff performed most of the 10 cited activities infrequently, with assistance, and slowly or with 11 substantial 12 activities 13 secure and maintain employment or that Plaintiff’s pain is not as 14 severe as she claims. 15 fact that a plaintiff has carried on certain daily activities, such 16 as grocery shopping, driving a car, or limited walking for exercise, 17 does not in any way detract from her credibility as to her overall 18 disability. 19 to be disabled.” 20 2001) 21 adverse credibility finding where claimant was able to go grocery 22 shopping with assistance, walk approximately an hour in the mall, get 23 together 24 undergo physical therapy, and exercise at home); see also Reddick v. 25 Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (activities of daily 26 living 27 activity 28 limitations”; ALJ erred by “not fully accounting for the context of on daily First, the ALJ overstated the degree to which activities evidence pain. fail and (AR to were consistent testimony 165-67, support the with ALJ’s abilities For example, the ALJ addressing 190-94). the Plaintiff’s Therefore, finding that daily Plaintiff’s Plaintiff can The Ninth Circuit has cautioned that “the mere One does not need to be ‘utterly incapacitated’ in order (finding with affect [is] Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. “only friends, a a scintilla” play claimant’s cards, of evidence swim, credibility inconsistent with 9 watch “[o]nly [the supporting ALJ’s television, if the claimant’s] read, level of claimed 1 materials or all parts of the testimony and reports,” resulting in 2 paraphrasing 3 regarding the content or tone of the record”). of record material that was “not entirely accurate 4 5 The ALJ also rejected Plaintiff’s testimony based on his own 6 observations of Plaintiff’s conduct during and immediately following 7 the hearing. 8 not necessarily render a decision improper, the Ninth Circuit has 9 repeatedly condemned so-called “sit and squirm” jurisprudence. v. (AR 22). Apfel, Although an ALJ’s personal observations do 188 10 Verduzco 11 Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)). 12 Court has no difficulty concluding that the ALJ’s observations during 13 the 14 support for an adverse credibility finding. 15 753 F.2d 1450, 1455 (9th Cir. 1984) (“The fact that a claimant does 16 not exhibit physical manifestations of prolonged pain at the hearing 17 provides little, if any, support for the ALJ’s ultimate conclusion 18 that the claimant is not disabled or that his allegations of constant 19 pain are not credible.”). fourteen-minute F.3d 1087, hearing, (AR 1090 31, (9th 44), Cir. provide 1999 See (citing Here, the insufficient See Gallant v. Heckler, 20 21 The ALJ also discredited Plaintiff’s testimony on the grounds 22 that it was not substantiated by medical evidence. 23 reason, 24 credibility finding. 25 792-93 26 credibility cannot be premised wholly on a lack of medical support 27 for the severity of his pain.”). standing (9th Cir. alone, is insufficient to (AR 19). support an This adverse Light v. Social Sec. Admin., 119 F.3d 789, 1997) (“[A] finding 28 10 that the claimant lacks 1 B. The Court Cannot Conclude That The ALJ’s Error Was Harmless 2 3 “[H]armless error principles apply in the Social Security . . . 4 context.” 5 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 6 Cir. 2006)). 7 ‘inconsequential to the ultimate nondisability determination.’” 8 (citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 9 (9th Cir. 2008)). Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) Generally, “an ALJ’s error is harmless where it is Id. 10 11 The Court cannot conclude that the ALJ’s errors were harmless. 12 The limiting effects of Plaintiff’s pain are directly relevant to 13 assessing 14 finding contributing to the final . . . decision about disability.” 15 See 16 (quoting SSR 96—5p). 17 determination that there was work that she could perform despite her 18 limitations. 19 the ALJ’s errors were “inconsequential to the ultimate nondisability 20 determination,” the errors cannot be deemed harmless. 21 533 F.3d at 1162. her McCawley RFC. v. A claimant’s Astrue, 423 F. RFC App’x “may 687, be the 689 most (9th critical Cir. 2011) Here, Plaintiff’s RFC was central to the ALJ’s (AR 23-24). Because the Court cannot determine that See Carmickle, 22 23 C. Remand Is Warranted 24 The decision whether to remand for further proceedings or order 25 26 an immediate award of benefits is within the district court’s 27 discretion. 28 Where no useful purpose would be served by further administrative Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 11 1 proceedings, or where the record has been fully developed, it is 2 appropriate to exercise this discretion to direct an immediate award 3 of benefits. 4 further 5 proceedings.”). 6 that further administrative review could remedy the Commissioner’s 7 errors, remand is appropriate. 8 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. 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 9 10 Here, the Court remands because the ALJ provided insufficient 11 support 12 testimony. 13 was required to find Plaintiff credible, nor does it establish that 14 the ALJ would necessarily be required to find Plaintiff disabled if 15 these deficiencies were remedied. for his decision to discount Plaintiff’s “excess pain” The record does not affirmatively establish that the ALJ Remand is therefore appropriate. 16 17 The Court has not reached issues not discussed supra except to 18 determine that reversal with a directive for the immediate payment of 19 benefits would be inappropriate at this time. 20 issues addressed in this order, the ALJ should consider on remand any 21 other issues raised by Plaintiff, if necessary. 22 // 23 // 24 // 25 26 27 28 12 In addition to the 1 VI. CONCLUSION 2 3 For the foregoing reasons, the decision of the Administrative 4 Law Judge is VACATED, and the matter is REMANDED, without benefits, 5 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 10 11 Dated: September 12, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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