Walter Hardy v. Carolyn W. Colvin, No. 2:2016cv00779 - Document 23 (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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Walter Hardy v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 ) No. CV 16-0779 AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) WALTER HARDY, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 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 25 On December 26 applied 27 disabling condition beginning March 1, 2008. 28 2014, for 6, 2012, Supplemental Administrative Law Plaintiff Security Judge Walter Income (“ALJ”) Hardy (“Plaintiff”) benefits (AR 114). David G. alleging a On June 3, Marcus examined 1 Dockets.Justia.com 1 records 2 (“V.E.”) Dr. Martin Brodwin. 3 denied Plaintiff benefits in a written decision. 4 Appeals Council denied review of the ALJ’s decision. and heard testimony from Plaintiff (AR 36-62). and vocational expert On August 5, 2014, the ALJ (AR 26-32). The (AR 1-4). 5 6 On February 3, 2016, Plaintiff filed a Complaint pursuant to 7 42 U.S.C. §§ 405(g) and 1383(c) alleging that the Social Security 8 Administration erred in denying benefits. 9 June 20, 2016, Defendant filed an Answer to the Complaint, (Docket 10 Entry No. 14), and 11 (Docket Entry No. 15). 12 a United States Magistrate Judge. 13 October 26, 14 Stip.”) setting 15 claims. the forth Certified Administrative Record On (Docket Entry No. 22). 2016, the (Docket Entry No. 1). (“AR”), The parties have consented to proceed before parties their (Docket Entry Nos. 11, 12). filed a respective Joint Stipulation positions on On (“Joint Plaintiff’s 16 II. SUMMARY OF ALJ’S DECISION 17 18 The ALJ applied the five-step process in evaluating Plaintiff’s 19 20 case. (AR 26-28). 21 had not engaged in substantial gainful activity since the application 22 date. 23 impairments included diabetes mellitus, obesity, and bilateral knee 24 osteoarthritis. 25 Plaintiff’s impairments did not meet or equal a listing found in 20 26 C.F.R. Part 404, Subpart P, Appendix 1. (AR 28). At step one, the ALJ determined that Plaintiff At step two, the ALJ found that Plaintiff’s severe (AR 28-29). At step three, the ALJ found that 27 28 2 (AR 29). 1 Before proceeding to step four, the ALJ found that Plaintiff had 2 the residual functional capacity (“RFC”) to perform less than a full 3 range of medium work. 4 Plaintiff 5 frequently. 6 hour 7 kneeling and squatting.” 8 ALJ 9 extent of his limitations were “not entirely credible.” “can lift/carry 50 Specifically, the ALJ ruled that pounds occasionally and 25 pounds He can stand/walk 6 hours and sit 6 hours each in an 8- workday. stated (AR 29). [Plaintiff] that can engage (AR 29). Plaintiff’s in occasional climbing, In making his RFC finding, the subjective complaints regarding the (AR 30). 10 11 At step four, the ALJ determined that Plaintiff could return to 12 his past relevant work as a van driver. (AR 31-32). Accordingly, 13 the ALJ determined that Plaintiff was not disabled within the meaning 14 of the Social Security Act. (AR 32). 15 III. STANDARD OF REVIEW 16 17 18 This court reviews the Administration’s decision to determine if 19 the decision is free of legal error and supported by substantial 20 evidence. 21 1157, 1161 (9th Cir. 2012). 22 mere scintilla, but less than a preponderance. 23 759 F.3d 995, 1009 (9th Cir. 2014). 24 evidence supports a finding, “a court must consider the record as a 25 whole, 26 detracts 27 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 28 omitted). See Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d weighing from As both the a “Substantial evidence” is more than a evidence To determine whether substantial that [Commissioner’s] result, “[i]f the 3 Garrison v. Colvin, supports and conclusion.” evidence can evidence that Aukland support v. either 1 affirming 2 substitute [its] judgment for that of the ALJ.” 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006). or reversing the ALJ’s conclusion, [a court] may not Robbins v. Soc. Sec. 4 5 IV. PLAINTIFF’S CONTENTIONS 6 7 Plaintiff’s sole claim is that the ALJ failed 8 adequate reasons for rejecting his subjective complaints. 9 to provide Stip. at 4-8). (See Joint 10 11 V. DISCUSSION 12 13 14 After reviewing the record, the Court finds that Plaintiff’s claim warrants remand for further consideration. 15 16 A. 17 The ALJ Failed To Provide Adequate Reasons For Rejecting Plaintiff’s Subjective Complaints 18 19 A claimant initially must produce objective medical evidence 20 establishing a medical impairment reasonably likely to be the cause 21 of his subjective symptoms. 22 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 23 1991). Once a claimant produces objective medical evidence of an 24 underlying impairment that could reasonably be expected to produce 25 pain 26 malingering, the ALJ may reject the claimant’s testimony regarding 27 the severity of his pain and symptoms only by articulating specific, 28 clear and convincing reasons for doing so. or other symptoms Smolen v. Chater, 80 F.3d 1273, 1281 alleged, 4 and there is no evidence of Brown-Hunter v. Colvin, 1 806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue, 2 504 F.3d 1028, 1036 (9th Cir. 2007)). 3 no 4 standard applies. evidence of malingering, the In this case, because there is “clear and convincing reasons” 5 6 During the hearing, Plaintiff testified that he had last worked 7 in 2006 and had previously been a driver and performed “shipping and 8 receiving dock work.” 9 time of the hearing, he was seeing a doctor every two weeks for his (AR 39-42). Plaintiff claimed that, at the 10 diabetes and hypertension. (AR 42-43). Plaintiff also observed that 11 he was insulin dependent and had high cholesterol. (AR 44). 12 13 Plaintiff testified that he suffered from swollen joints, hands, 14 and feet every day, as well as heart palpitations three times a week 15 that caused burning in his chest and could last for hours at a time. 16 (AR 45-46, 55). 17 in his knees and ankles along with numbness, tingling, and burning in 18 his feet for hours at a time. 19 that 20 minutes and that he gets severe headaches three or four times a week 21 for a few hours at a time. 22 experience numbness in his fingertips, dizziness, back pain after 23 lifting heavy objects, and blurry vision. his legs Plaintiff also testified that he had constant pain sometimes (AR 46-47). “lock up” for (AR 47-49). Plaintiff further stated between twenty and sixty Plaintiff also claimed to (AR 51-54). 24 Plaintiff testified that he walked for between 45 minutes and an 25 26 hour three times a week and that 27 exercise to prevent his legs from “lock[ing] up.” 28 5 doctors recommended additional (AR 56). He also 1 stated that, to control his conditions, he had modified his diet, 2 drank “lots of water,” and took his insulin regularly. (AR 56-57). 3 4 5 The ALJ partially rejected Plaintiff’s subjective complaints in the following excerpt: 6 7 After careful consideration 8 undersigned finds that [Plaintiff’s] medically determinable 9 impairments could reasonably symptoms; of be however, the evidence, expected to [Plaintiff’s] cause the the 10 alleged statements 11 concerning the intensity, persistence and limiting effects 12 of these symptoms are not entirely credible for the reasons 13 explained in this decision. 14 15 While [Plaintiff’s] impairments do limit certain aspects of 16 [his] functioning, there is no evidence establishing the 17 impairments are so severe as to prevent [Plaintiff] from 18 basic work activities. 19 20 In order for an impairment to be severe, the impairment 21 must last or be expected to last at the “severe” level for 22 a continuous period of 12 months or be expected to result 23 in death. 24 December 2012 and January 2013. 25 that [Plaintiff’s] impairments do not meet the durational 26 requirement. 27 the 28 impairments are severe. doubt, The records show [Plaintiff] was treated only in Thus, it could be argued However, giving [Plaintiff] the benefit of the undersigned finds 6 that the above-listed 1 As 2 indicates that he has insulin-dependent diabetes. 3 the 4 associated with 5 currently receiving 6 testified 7 insulin per day. 8 responsive to prescribed medication. for [Plaintiff’s] record does that diabetes, not indicate [Plaintiff’s] he significant diabetes. treatment was [Plaintiff’s] for compliant, record However, limitations [Plaintiff] diabetes, taking is and doses two he of There is no evidence that he was not 9 10 The undersigned 11 credible. 12 [Plaintiff’s] 13 finds complaints. The that objective allegations [Plaintiff] evidence of is does severity not not and fully support subjective 14 15 He testified that 16 fingertips, but there is no sensory loss documented in the 17 medical 18 [Plaintiff’s] 19 diabetic peripheral neuropathy, but noted that if that was 20 the 21 atrophy. 22 shoes, 23 swelling. 24 more serious conditions associated with diabetes, including 25 diabetic nephropathy, peripheral neuropathy or retinopathy. evidence case, the it he of occasional record. history would has The may be consultant suggest mild, and numbness the has in noted his that beginnings not resulted of in Although [Plaintiff] was fitted for orthopedic record shows no evidence of lower extremity Also, he has not actually been diagnosed with 26 27 [Plaintiff] also testified that he has high blood pressure 28 and cholesterol, but there is 7 no significantly elevated 1 blood 2 record shows that on December 27, 2012, [Plaintiff’s] blood 3 pressure was noted to be 140/86, which is not abnormally 4 high. 5 congestive 6 [Plaintiff] reports that he has dizzy spells when he gets 7 up too fast, but there is no evidence of complaints of 8 dizziness in the treatment records or a medical diagnosis 9 related to this symptom. pressure documented in the medical records. The The record also shows that there is no evidence of heart failure or a cardiac diagnosis. 10 11 As for the knees, [Plaintiff] has alleged pain, and on 12 examination, there was mild osteoarthritic changes in the 13 knees with crepitus on flexion noted. 14 no indication of abnormal gait in the record. 15 ambulated 16 able 17 Although he complained of the swelling in the extremities, 18 there was no documented problem with edema. 19 indicated that he was able to walk for exercise between 45 20 minutes 21 [Plaintiff] testified that when he told his doctors that 22 his legs lock up, they told him to exercise more. to without stand and on one an assistive toes/heels, hour 3 device. and times However, there was [Plaintiff] perform per [Plaintiff] tandem week. was gait. [Plaintiff] In fact, 23 24 [Plaintiff] has a history of obesity, as evidenced by his 25 weight of 244 pounds at 6’ tall, which calculates to a body 26 mass index (BMI) of 33.1. 27 the potential impact of obesity in causing or contributing The undersigned has considered 28 8 1 to 2 Security Ruling 02-01p. . . . the co-existing impairments as required by Social 3 4 After considering the record as a whole, the undersigned 5 finds that [Plaintiff’s] residual functional capacity takes 6 into account [Plaintiff’s] limitations, and is reasonable 7 in light of the objective medical evidence. 8 9 (AR 30-31 (record citation and footnote omitted)). 10 Remand 11 is warranted. As Defendant notes, the ALJ rejected 12 Plaintiff’s testimony in part because Plaintiff was able to walk for 13 exercise for up to one hour three times per week. 14 Stip. at 10, 13). However, the record does not demonstrate that 15 Plaintiff’s to 16 consistent with the ability to perform full time work or inconsistent 17 with his subjective complaints. 18 1044, 1050 (9th Cir. 2001) (finding “only a scintilla” of evidence 19 supporting ALJ’s adverse credibility finding where claimant was able 20 to go grocery shopping with assistance, walk approximately an hour in 21 the 22 television, read, undergo physical therapy, and exercise at home); 23 see also Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) 24 (activities of daily living affect a claimant’s credibility “[o]nly 25 if the level of activity [is] inconsistent with [the claimant’s] 26 claimed limitations;” ALJ erred by “not fully accounting for the 27 context of materials or all parts of the testimony and reports,” mall, ability get together walk with three times weekly (AR 31; Joint for exercise is See Vertigan v. Halter, 260 F.3d friends, 28 9 play cards, swim, watch 1 resulting in paraphrasing of record material that was “not entirely 2 accurate regarding the content or tone of the record”). 3 4 The ALJ also rejected Plaintiff’s testimony partially because 5 there 6 prescribed diabetes medication. 7 is unclear if this finding is distinct from the ALJ’s conclusion, 8 addressed infra, that objective evidence and the treatment record did 9 not substantiate Plaintiff’s testimony regarding the severity of his is “no evidence” that Plaintiff was not responsive to (AR 30; Joint Stip. at 10, 12). It 10 limitations. 11 contains “indications” based on blood work that “Plaintiff’s diabetes 12 was not well-controlled.” 13 of Plaintiff’s credibility does not analyze these indications and 14 fails to provide necessary factual context for the ALJ’s finding. 15 The finding therefore provides an insufficient basis upon which to 16 affirm. 17 ALJ to develop an evidentiary basis by “not fully accounting for the 18 context of materials or all parts of the testimony and reports”); see 19 also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (an ALJ 20 may 21 evidence in the record that would suggest the opposite result). not In any event, Respondent acknowledges that the record (Joint Stip. at 12). The ALJ’s discussion See Reddick, 157 F.3d at 723 (it is impermissible for the reach a conclusion and justify it by ignoring competent 22 23 Otherwise, it appears that the ALJ’s rejected Plaintiff’s 24 complaints as inconsistent with the objective medical evidence and 25 treatment records. (AR 30-31). 26 cannot be the sole basis for finding a claimant not credible. 27 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“lack of medical 28 evidence” can be “a factor” in rejecting credibility, but cannot Lack of objective medical support 10 Burch 1 “form the sole basis”). 2 for rejecting Plaintiff’s testimony with the degree of specificity 3 required by case law. 4 Hunter, 806 F.3d at 494 (“Because the ALJ failed to identify the 5 testimony she found not credible, she did not link that testimony to 6 the particular parts of the record supporting her non-credibility 7 determination. The ALJ did not provide any other reasons See Burrell, 775 F.3d at 1138-39; Brown- This was legal error.”). 8 9 In light of the foregoing, the Court concludes that the ALJ 10 provided 11 Plaintiff’s subjective complaints. insufficient support for his decision to discount 12 13 B. The Court Cannot Conclude That The ALJ’s Error Was Harmless 14 “[H]armless error principles apply in the Social Security . . . 15 16 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 17 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 18 Cir. 2006)). 19 ‘inconsequential to the ultimate nondisability determination.’” 20 (citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 21 (9th Cir. 2008)). Generally, “an ALJ’s error is harmless where it is Id. 22 23 The Court cannot conclude that the ALJ’s errors were harmless. 24 The limiting effects of Plaintiff’s pain are directly relevant to 25 assessing 26 finding contributing to the final . . . decision about disability.” 27 See 28 (quoting SSR 96—5p). his McCawley RFC. v. A Astrue, claimant’s 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 11 1 determination that he could return to his past work. 2 Because 3 “inconsequential to the ultimate nondisability determination,” the 4 errors cannot be deemed harmless. the Court cannot determine that the ALJ’s (AR 31-32). errors were See Carmickle, 533 F.3d at 1162. 5 6 C. Remand Is Warranted 7 The decision whether to remand for further proceedings or order 8 9 an immediate award of benefits is within the district court’s 10 discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 11 Where no useful purpose would be served by further administrative 12 proceedings, or where the record has been fully developed, it is 13 appropriate to exercise this discretion to direct an immediate award 14 of benefits. 15 further 16 proceedings.”). 17 that further administrative review could remedy the Commissioner’s 18 errors, remand is appropriate. 19 (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 20 21 Here, the Court remands because the ALJ provided insufficient 22 support for his decision to discount Plaintiff’s subjective 23 complaints. 24 could not have found Plaintiff not fully credible for other reasons, 25 nor does it establish that the ALJ would necessarily be required to 26 find Plaintiff disabled if these deficiencies were remedied. 27 is therefore appropriate. The record does not affirmatively establish that the ALJ 28 12 Remand 1 The Court has not reached issues not discussed supra except to 2 determine that reversal with a directive for the immediate payment of 3 benefits would be inappropriate at this time. 4 5 VI. CONCLUSION 6 7 For the foregoing reasons, the decision of the Administrative 8 Law Judge is VACATED, and the matter is REMANDED, without benefits, 9 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 14 15 Dated: November 30, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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