Charles Dixon v. Carolyn W. Colvin, No. 2:2016cv05844 - Document 33 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER IN PART by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision as to Plaintiff's SSI application only, GRANTING Plaintiffs request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)
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Charles Dixon v. Carolyn W. Colvin Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHARLES DIXON, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. CV 16-5844-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER IN PART ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed August 14, 2017, which the Court has taken under submission 26 without oral argument. The parties consented to the jurisdiction of the The For the reasons stated below, the 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. 1 Dockets.Justia.com 1 Commissioner’s decision is reversed as to Plaintiff’s SSI 2 application and this action is remanded for further proceedings. 3 II. 4 BACKGROUND Plaintiff was born in 1969. (Administrative Record (“AR”) He has an 11th-grade education (AR 63)2 and last 5 110, 174.) 6 worked in 2003 as a railroad worker (AR 191). 7 On October 1, 2013, Plaintiff applied for DIB and SSI, 8 alleging that he had been unable to work since November 28, 2007 9 (AR 110, 174-77), because of lower-back pain, gout flare-ups, 10 gunshot wounds, and injury to the fingers on his left hand and to 11 his femur bone (see id.).3 12 initially and upon reconsideration (see AR 137-38, 141-45), he After his applications were denied 13 14 15 2 Though Plaintiff testified at his hearing that he completed 11th grade and never received a high-school diploma (AR 63), the record shows elsewhere that he has a 12th-grade education (AR 115, 190). 16 3 17 18 19 20 21 22 23 24 25 26 27 28 An ALJ denied Plaintiff’s earlier applications for DIB and SSI on December 12, 2011. (AR 125-33.) The ALJ here made conflicting findings on whether Plaintiff had demonstrated changed circumstances indicating greater disability since that final decision and whether the presumption of continuing nondisability therefore applied. (See AR 43 (presumption applies), 50 (presumption does not apply)); Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1995) (as amended Apr. 9, 1996) (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), as holding that certain changed circumstances preclude application of res judicata). Defendant does not contend that the presumption applies, so the Court assumes it doesn’t. Plaintiff’s insured status expired on December 31, 2007 (see AR 43), and thus the 2011 final finding of “not disabled” (see AR 125-33) makes him ineligible to receive DIB because a DIB claimant must establish that he became disabled on or before the expiration of his insured status. 20 C.F.R. § 404.131; see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Chavez, 844 F.2d at 693 (“The principles of res judicata apply to administrative decisions[.]”). Thus, the Commissioner’s denial of Plaintiff’s DIB application is affirmed. 2 1 requested a hearing before an Administrative Law Judge (AR 140). 2 A hearing was held on November 19, 2014, at which Plaintiff, who 3 was represented by counsel, testified, as did a vocational 4 expert. 5 December 9, 2014, the ALJ found Plaintiff not disabled. 6 55.) 7 evidence. 8 Appeals Council denied review, finding that the additional 9 evidence did not provide a basis for changing the ALJ’s decision. (See AR 56-82.) In a written decision issued on (AR 42- Plaintiff requested review and submitted additional (See AR 36-37, 229-30, 441-95.) 10 (AR 1-5.) 11 of the administrative record. 12 On June 6, 2016, the III. STANDARD OF REVIEW 13 The council ordered that the new evidence be made part (AR 6.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 14 Commissioner’s decision to deny benefits. 15 decision should be upheld if they are free of legal error and 16 supported by substantial evidence based on the record as a whole. 17 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 18 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 evidence means such evidence as a reasonable person might accept 20 as adequate to support a conclusion. 21 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 22 It is more than a scintilla but less than a preponderance. 23 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 24 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 25 substantial evidence supports a finding, the reviewing court 26 “must review the administrative record as a whole, weighing both 27 the evidence that supports and the evidence that detracts from 28 the Commissioner’s conclusion.” The ALJ’s findings and Substantial Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, 3 1 720 (9th Cir. 1998). “If the evidence can reasonably support 2 either affirming or reversing,” the reviewing court “may not 3 substitute its judgment” for the Commissioner’s. 4 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 5 People are “disabled” for purposes of receiving Social 6 Security benefits if they are unable to engage in any substantial 7 gainful activity owing to a physical or mental impairment that is 8 expected to result in death or has lasted, or is expected to 9 last, for a continuous period of at least 12 months. 42 U.S.C. 10 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 11 1992). 12 A. 13 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 14 assess whether a claimant is disabled. 15 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 16 1995) (as amended Apr. 9, 1996). 17 Commissioner must determine whether the claimant is currently 18 engaged in substantial gainful activity; if so, the claimant is 19 not disabled and the claim must be denied. 20 C.F.R. In the first step, the § 416.920(a)(4)(i). 20 If the claimant is not engaged in substantial gainful 21 activity, the second step requires the Commissioner to determine 22 whether the claimant has a “severe” impairment or combination of 23 impairments significantly limiting his ability to do basic work 24 activities; if not, the claimant is not disabled and his claim 25 must be denied. 26 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 27 impairments, the third step requires the Commissioner to 28 determine whether the impairment or combination of impairments 4 1 meets or equals an impairment in the Listing of Impairments set 2 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 3 disability is conclusively presumed. § 416.920(a)(4)(iii). 4 If the claimant’s impairment or combination of impairments 5 does not meet or equal an impairment in the Listing, the fourth 6 step requires the Commissioner to determine whether the claimant 7 has sufficient residual functional capacity (“RFC”)4 to perform 8 his past work; if so, he is not disabled and the claim must be 9 denied. § 416.920(a)(4)(iv). The claimant has the burden of 10 proving he is unable to perform past relevant work. 11 F.2d at 1257. 12 case of disability is established. Drouin, 966 If the claimant meets that burden, a prima facie Id. 13 If that happens or if the claimant has no past relevant 14 work, the Commissioner then bears the burden of establishing that 15 the claimant is not disabled because he can perform other 16 substantial gainful work available in the national economy. 17 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 18 comprises the fifth and final step in the sequential analysis. 19 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 20 at 1257. That determination 21 B. The ALJ’s Application of the Five-Step Process 22 At step one, the ALJ found that Plaintiff had not engaged in 23 substantial gainful activity since November 28, 2007, the alleged 24 25 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 onset date. 2 severe impairments of “a back disorder and gout.” 3 three, he found that he did not have an impairment or combination 4 of impairments falling under a Listing. 5 6 (AR 45.) At step two, he concluded that he had (Id.) At step (AR 45-46.) At step four, the ALJ found that Plaintiff had the RFC to perform light work with additional limitations: 7 [Plaintiff] can lift and carry 20 pounds occasionally and 8 10 pounds frequently. 9 out of an 8 hour day and can sit for 6 hours out of an 8 He can stand and walk for 6 hours 10 hour day with normal breaks. 11 activities (bending, stooping, crouching, crawling and 12 kneeling) 13 frequently. He has reduced grip strength.5 He can push 14 and pull without significant limitations. He has no 15 other limitations. occasionally. He He can perform postural can handle and finger 16 (AR 46-48.) 17 Plaintiff could not perform any past relevant work. 18 At step five, however, given Plaintiff’s “age, education, work 19 experience, and [RFC],” he determined that he could successfully 20 perform work available in the national economy, such as “cashier 21 II” and “sales attendant.” 22 Plaintiff not disabled. 23 V. 24 Based on the VE’s testimony, the ALJ concluded that (AR 49-50.) (AR 48-49.) Thus, the ALJ found (AR 50.) DISCUSSION Plaintiff argues that the ALJ erred in (1) evaluating the 25 credibility of his subjective symptom statements and (2) 26 considering and evaluating the opinion of Dr. Randall Gilbert. 27 5 28 At the hearing, the ALJ clarified that this translated into “no forceful gripping.” (AR 78.) 6 1 (J. Stip. at 4.) 2 matter must be remanded for further analysis and findings. 3 A. 4 5 Because the ALJ erred in the first regard, the The ALJ Erred in Assessing the Credibility of Plaintiff’s Subjective Symptom Statements Plaintiff argues that the ALJ “failed to articulate legally 6 sufficient reasons” for finding his subjective symptom statements 7 “not fully credible.” 8 is correct. 9 10 1. (See J. Stip. at 4-13, 23-26; AR 48.) He Applicable law An ALJ’s assessment of the credibility of a claimant’s 11 allegations concerning the severity of his symptoms is entitled 12 to “great weight.” 13 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th 14 Cir. 1985) (as amended Feb. 24, 1986). 15 ‘required to believe every allegation of disabling pain, or else 16 disability benefits would be available for the asking, a result 17 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 18 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 19 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 20 See Weetman v. Sullivan, 877 F.2d 20, 22 (9th “[T]he ALJ is not Molina v. In evaluating a claimant’s subjective symptom testimony, the 21 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 22 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).6 23 6 24 25 26 27 28 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 28, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however, and therefore does not apply. Still, the Ninth Circuit has clarified that SSR 16-3p “makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the 7 1 “First, the ALJ must determine whether the claimant has presented 2 objective medical evidence of an underlying impairment [that] 3 could reasonably be expected to produce the pain or other 4 symptoms alleged.” 5 objective medical evidence exists, the ALJ may not reject a 6 claimant’s testimony “simply because there is no showing that the 7 impairment can reasonably produce the degree of symptom alleged.” 8 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 9 original). 10 Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discredit 11 the claimant’s subjective symptom testimony only if he makes 12 specific findings that support the conclusion. 13 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 14 affirmative evidence of malingering, the ALJ must provide “clear 15 and convincing” reasons for rejecting the claimant’s testimony. 16 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 17 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 18 1102 (9th Cir. 2014). 19 (1) ordinary techniques of credibility evaluation, such as the 20 claimant’s reputation for lying, prior inconsistent statements, 21 and other testimony by the claimant that appears less than 22 candid; (2) unexplained or inadequately explained failure to seek 23 treatment or to follow a prescribed course of treatment; (3) the See Berry v. Absent a finding or The ALJ may consider, among other factors, 24 25 26 27 28 individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 8 1 claimant’s daily activities; (4) the claimant’s work record; and 2 (5) testimony from physicians and third parties. 3 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 4 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 5 2002). 6 substantial evidence in the record, the reviewing court “may not 7 engage in second-guessing.” 8 If the ALJ’s credibility finding is supported by 2. 9 Rounds v. Thomas, 278 F.3d at 959. Relevant background Plaintiff applied for DIB and SSI in 2010, alleging 10 disability beginning September 25, 2006. 11 medical records from before December 2011 are not in the record, 12 it appears he claimed to suffer from “bilateral knee problems, 13 gout, and chronic foot, knee, and wrist pain 2 to 3 times a 14 month.” 15 one month in 2007 because of liver and kidney problems caused by 16 medication. 17 “chronic back pain with some tenderness of the lumbar spine with 18 preserved range of movement and no signs of radiculopathy.” 19 128.) 20 (AR 129.) (Id.) (AR 125.) Although his He stated that he was hospitalized for about A March 20, 2010 consultative exam showed (AR In December 2011, Plaintiff sustained gunshot wounds to his 21 “abdomen, back, face, and left lower extremity.” 22 “principal diagnoses” were gunshot wounds to his “right cheek,” 23 his “right lower quadrant, tangential injury,” and his “left 24 thigh with femur fracture.” 25 nailing of the left femur fracture,” during which a rod was put 26 in his leg to help his bone heal. (AR 303.) 27 28 9 (AR 304.) His He had an “intramedullary (AR 67, 303.) He was 1 prescribed Vicodin7 for his pain. 2 appointment two weeks after his surgery, Plaintiff was “still 3 having difficulty ambulating” but was “recoveri[n]g well.” 4 297-98.) 5 mild.” 6 (AR 303-04.) At a follow-up (AR He “denie[d] any pain” and “[said] the symptoms [were] (Id.) Family-care physician Daniel Harvey first treated Plaintiff 7 in early 2012 for lingering pain related to his gunshot wounds. 8 (AR 279-80.) 9 [with a] walker” despite his “slow rehab.” On February 13, 2012, Plaintiff was “able to walk (AR 279.) In April 10 2012, Dr. Harvey diagnosed gout and prescribed colchicine8 (AR 11 278) and oxycodone9 (AR 277). 12 Annette Billings, an orthopaedic surgeon. 13 April 26, 2012, she evaluated Plaintiff for “right upper 14 extremity edema.”10 15 “intermittent” but could “sometimes” “be quite severe.” 16 He stated that it did not cause “a lot of pain” or “really any 17 dysfunction.” (Id.) (AR 246.) He referred Plaintiff to Dr. (See AR 246-47.) On He reported that the edema was (Id.) He also complained of a painful mass on his 18 19 7 20 Vicodin is a narcotic pain medication used to relieve moderate to moderately severe pain. See Vicodin, Drugs.com, https://www.drugs.com/vicodin.html (last updated Sept. 29, 2016). 21 8 22 23 24 25 26 27 28 Colchicine prevents or treats gout flare-ups by decreasing swelling and lessening the buildup of uric-acid crystals in the affected joints. See Colchicine, WebMD, https://www.webmd.com/ drugs/2/drug-8640/colchicine-oral/details (last visited Jan. 9, 2018). Colchicine is the generic name for Colcrys. Id. 9 Oxycodone is a narcotic pain medication used to treat moderate to severe pain. See Oxycodone, Drugs.com, https:// www.drugs.com/oxycodone.html (last updated Oct. 4, 2017). 10 Edema is the medical term for swelling. See What is Edema?, WebMD, https://www.webmd.com/heart-disease/heart-failure/ edema-overview (last visited Jan. 9, 2018). 10 1 finger. 2 for [her] to ascertain edema in the right upper extremity but 3 [Plaintiff’s] right upper extremity [did] appear to be a little 4 bit larger than the left upper extremity.” 5 15, 2012, she performed an “[e]xcisional biopsy of [Plaintiff’s] 6 right hand mass.” 7 (Id.) Dr. Billings noted that it was “very difficult (AR 247.) On August (AR 250-51.) Plaintiff had a gout flare-up on May 7, 2012, but by May 21 8 it was stable. (AR 275-76.) In July 2012, Dr. Harvey continued 9 to treat his gout flare-ups with antiinflammatory medication and 10 referred him to another physician for “long term pain 11 [management]” for his gunshot wounds. 12 2012 physical, Plaintiff showed no “edema” or “tender[ness].” 13 (AR 272.) 14 in his right hand, feet, and back from a gout flare-up. 15 271.) 16 Dr. Harvey “advised [a] Solu[-]medrol”11 injection, he “refused” 17 and apparently continued taking colchicine. 18 recommended he return in two weeks, but Plaintiff didn’t see him 19 again for almost a year; at his next appointment, in September 20 2013, he was stable with no pain and still taking colchicine (AR 21 262, 267), but his blood work showed elevated uric-acid levels 22 (AR 266). 23 (AR 273.) At an August 8, He next saw Dr. Harvey on November 14, 2012, for pain (AR He described his pain as being a “7” out of 10, but though (Id.) Dr. Harvey Plaintiff began seeing rheumatologist Randall Gilbert on 24 25 26 27 28 11 Solu-Medrol reduces symptoms such as swelling and pain by decreasing a patient’s immune system’s response to various diseases. See Solu-Medrol Solution, WebMD, https:// www.webmd.com/drugs/2/drug-6135/solu-medrol-injection/details (last visited Dec. 20, 2017). It is usually administered by injection. Id. 11 1 August 12, 2013, for “flare[-up]s involving [his] hands, knees, 2 and feet,” complaining specifically of “several months of [left] 3 lateral wrist pain.” 4 Plaintiff’s hands had “[g]ood fist closures,” his right wrist had 5 a “full [range of motion],” his back had “mild [to] moderate 6 referred pain,” and his knees had “full” bilateral range of 7 motion. 8 “discogenic” lumbar pain; administered an injection to 9 Plaintiff’s left wrist; recommended “maintain[ing] colchicine”; (Id.) (AR 365.) Dr. Gilbert noted that He assessed “wrist lateral tendonitis,” gout, and 10 and continued Plaintiff’s oxycodone prescription. 11 September 17, 2013, Plaintiff reported that the injection on his 12 left wrist had “provided excellent benefit,” and Dr. Gilbert 13 noted that he now had “full [range of motion]” in that wrist. 14 (AR 364.) 15 “mild swelling” in his right wrist and “mild” pain in his back. 16 (Id.) 17 colchicine prescription, and recommended decreasing his oxycodone 18 prescription. 19 (Id.) On He further complained of “moderate referred pain” and Dr. Gilbert injected his right wrist, continued his (Id.) On October 21, 2013, Plaintiff reported that the right-wrist 20 injection “provided good benefit” until he “developed a 21 recurrence of [right] lateral wrist pain.” 22 had “developed a gouty flare[-up]” of his feet, but his “low back 23 pain [was mild and] reasonably controlled.” 24 treated his right wrist with a “lateral tendon inject[ion]” and 25 continued his prescription for oxycodone. 26 2014, Plaintiff complained of gout flare-ups in his left wrist 27 and right ankle and foot, but his lower-back pain was “mild” and 28 “stable on medication.” (AR 362.) 12 (AR 363.) (Id.) (Id.) He also Dr. Gilbert On January 17, Dr. Gilbert injected his left 1 wrist, prescribed Uloric12 to treat his gout, and continued his 2 oxycodone prescription. 3 (Id.) On March 20, 2014,13 Plaintiff reported that his left wrist 4 “greatly improved” following the January 17 injection, and he 5 showed “full” range of motion in that wrist. 6 complained of “[left] foot swelling and associated pain” but had 7 only “mild forefoot edema [and] minimal tenderness” in that foot, 8 with “good” range of motion in his right foot. 9 complained of “persist[ent]” “moderate” lumbar pain. (AR 491.) (Id.) He He also (Id.) He 10 had not yet begun taking Uloric, and Dr. Gilbert again prescribed 11 it for him. 12 taking colchicine and oxycodone. (Id.) He also recommended that Plaintiff continue (Id.) On June 16, 2014, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Uloric lowers uric-acid levels in people with gout. Uloric, WebMD, https://www.webmd.com/drugs/2/drug-151872/ uloric-oral/details (last visited Jan. 9, 2018). 13 See Dr. Gilbert’s treatment notes after Plaintiff’s January 17, 2014 appointment were apparently not in the record at the time of the ALJ’s decision but were submitted to the Appeals Council. (See AR 5, 52-55; compare AR 392 (incomplete Mar. 20, 2014 notes), with AR 491 (complete Mar. 20, 2014 notes).) Social Security Administration regulations “permit claimants to submit new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ’s decision, so long as the evidence relates to the period on or before the ALJ’s decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also § 416.1470(b). “[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.” Brewes, 682 F.3d at 1163; accord Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm’r of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand necessary when “reasonable possibility” exists that “the new evidence might change the outcome of the administrative hearing”). Thus, the Court includes these additional 2014 records in its review. 13 1 Plaintiff said he had taken Uloric for two months and tolerated 2 it well, but apparently he stopped at some point because Dr. 3 Gilbert wrote in his notes for Plaintiff to “re-start Uloric.” 4 (AR 490.) 5 and hand pain with “mildly weak fist closures.” 6 Gilbert continued his prescriptions for oxycodone and colchicine. 7 (Id.) 8 9 He reported “mild” wrist pain, “moderate” back pain, (Id.) Dr. On August 13, 2014, Plaintiff complained of “markedly increased [left] knee pain with weight-bearing,” “mild” left- 10 wrist pain, and “moderate” “lumbar pain with activity.” 11 489.) 12 Gilbert injected his left knee and continued his prescriptions 13 for Uloric, colchicine, and oxycodone. 14 2014, Plaintiff reported that his left knee was “partially 15 improved following [his August 13] injection.” 16 “halted [Uloric] for 1 month.” 17 persistent plantor feet pain with ambulation,” “mild” left-knee 18 pain, “mild” hand pain, and “moderate” back pain. 19 hands showed “adequate fist closures.” 20 recommended increasing Uloric and maintaining colchicine and 21 oxycodone. 22 Plaintiff’s “moderately severe active tophaceous14 gouty 23 arthritis” had “markedly impaired the function of his hands for 24 activities of daily living and fine motor movements of his His right knee had a “full” range of motion. (Id.) (Id.) (Id.) (AR (Id.) Dr. On October 23, (AR 488.) He had He complained of “moderate (Id.) (Id.) His Dr. Gilbert On November 26, 2014, Dr. Gilbert opined that 25 26 27 28 14 Tophaceous gout is a form of chronic gout in which nodular masses of uric-acid crystals are deposited in soft-tissue areas of the body. Medical Definition of Gout, tophaceous, MedicineNet.com, https://www.medicinenet.com/script/main/ art.asp?articlekey=3625 (last updated May 13, 2016). 14 1 fingers.” 2 (AR 441.)15 Consulting internist Steven Gerber evaluated Plaintiff on 3 February 7, 2014. (AR 366-70.) 4 “constant, sharp lower back pain without radiation” that was 5 “exacerbated by prolonged standing and walking” but “relieved 6 with medications.” 7 walk one-half block and attend church services for 35 minutes 8 without difficulty.” 9 able to “get[] on and off the examination table without (Id.) (AR 366.) Plaintiff’s chief complaint was He stated that “he [was] able to (AR 367.) Dr. Gerber noted that he was 10 difficulty.” 11 tenderness to palpation in the midline,” his “[s]traight leg 12 raising test [was] positive bilaterally at 60 degrees,” and his 13 range of motion showed “[l]ateral flexion . . . 20/25 degrees, 14 extension 20/25 degrees, and forward flexion 50/90 degrees.” 15 368.) His extremities generally showed “no . . . edema.” 16 369.) “There [was] no evidence of tenderness to palpation of the 17 wrists,” and his wrist “[r]ange of motion [was] intact” and 18 “within normal limits.” 19 joint deformities” and could be “fully extended,” and he was 20 “able to make a fist and oppose the thumbs.” 21 showed “no joint deformities” or “swelling,” and their “[r]ange Plaintiff’s lumbar spine showed “no (Id.) (AR (AR His hands showed “no evidence of (Id.) His ankles 22 15 23 24 25 26 27 28 Additional medical records from Dr. Gilbert dated March 5, 2015, through March 17, 2016, were “looked at” by the Appeals Council (see AR 20-27) but not considered because his case was decided on December 9, 2014, and the records were “about a later time” (AR 2). Medical examinations that take place after the ALJ’s decision may still relate to a claimant’s conditions “during the relevant time period.” Handy v. Colvin, No. CV 14–02149–SH, 2014 WL 4895678, at *3 (C.D. Cal. Sept. 30, 2014). Plaintiff does not contend that the Appeals Council erred in rejecting the medical records from 2015 and 2016, however, so the Court does not address them. 15 1 of motion [was] intact” and “within normal limits.” 2 Plaintiff “[did] not require the use of an assistive device to 3 ambulate throughout the clinic area.” 4 examination, Dr. Gerber assessed Plaintiff as being able to “lift 5 or carry 20 pounds occasionally and 10 pounds frequently,” “stand 6 or walk for 6 hours in an 8-hour day,” “sit for 6 hours in an 8- 7 hour day,” and “occasionally climb, crouch, stoop, bend, kneel, 8 and crawl.” 9 (AR 370.) (Id.) Based on his (Id.) Plaintiff filled out a Pain Questionnaire on December 24, 10 2013. 11 throbbing” pain “daily” in his joints, lower back, feet, knees, 12 legs, and hands. 13 “[didn’t] stop” his pain, and the medicine caused “fatigue, 14 weakness, dizziness[, and] diarrhea.” 15 surgery was scheduled to attempt to relieve his pain. 16 His family helped him “constant[ly]” with activities such as 17 bathing, getting up, buying groceries, completing errands, and 18 getting dressed. 19 Exertional Daily Activities Questionnaire. 20 stated that he “[couldn’t] do . . . much of anything without 21 someone helping [him because his] joints [were] constantly in 22 pain.” 23 for a long period of time.” 24 naps twice a day and “[had] to use [a] cane on a daily [basis].” 25 (AR 204.) (AR 199-201.) (AR 202.) He reported feeling “constant [and] (AR 199.) (AR 201.) Rest and medicine “help[ed]” but (AR 199-200.) He said no (AR 200.) He also filled out an undated (AR 202-04.) He He couldn’t “lift or carry anything [or] stand (Id.) He required rest periods or 26 At his November 19, 2014 hearing, Plaintiff stated that 27 despite treatment for his gout, his “hands . . . constantly hurt” 28 and felt “weak.” (AR 65.) He testified that he got flare-ups in 16 1 “particular part[s] of [his] body” “[e]very other week” and that 2 his “gout [had] gotten a lot worse.” 3 could “move [his] fingers,” but if he “pick[ed] things up with 4 [his] hands” “it [would] start hurting.” 5 that he received injections “once or twice a month,” and his last 6 injection had been on his left wrist two months before the 7 hearing. 8 side effects from the colchicine and oxycodone he took aside from 9 drowsiness. 10 (AR 70.) 3. 11 (AR 65-66, 68.) (AR 69.) He said he He testified Finally, he stated that he did not have any (AR 73.) Analysis The ALJ was required to provide “clear and convincing” 12 reasons for rejecting Plaintiff’s testimony. 13 806 F.3d at 493; Treichler, 775 F.3d at 1102. 14 Plaintiff (see J. Stip. at 4-13, 23-26) and discussed below, he 15 failed to do so. 16 See Brown-Hunter, As argued by First, the ALJ gave “limited weight to [Plaintiff’s] 17 testimony and statements” because his “treatment [had] been 18 conservative at best.” 19 other intense treatment modalities [had] been necessary” and that 20 Plaintiff “[had] not been prescribed narcotic pain medication.” 21 (Id.) 22 shows that Plaintiff had two surgeries, at least one of which was 23 for “treatment.” 24 his femur following a gunshot wound (AR 303), and on August 15, 25 2012, he had a biopsy and removal of a 10-year-old mass on his 26 right hand (see AR 246, 250-51). 27 “a rod from [his] hip to [his] knee” because a “bullet . . . 28 shattered [his] whole femur bone” (see AR 67), and the ALJ (AR 48.) He wrote that “no surgery or But none of those assertions is accurate. The record On December 6, 2011, he had a rod inserted in 17 Plaintiff testified that he had 1 himself noted that the surgery involved debridement16 and 2 anterior washout17 (AR 47), which is “treatment.” 3 Sanchez v. Berryhill, No. CV 16-8043-KK, 2017 WL 3530342, at *6 4 (C.D. Cal. Aug. 16, 2017) (describing debridement as 5 “treatment”). 6 See, e.g., Further, Plaintiff was prescribed Vicodin after his femur 7 surgery in December 2011 (AR 303-04), and Drs. Harvey and Gilbert 8 prescribed oxycodone to treat Plaintiff’s pain beginning in April 9 2012 and continuing to the time of the Appeals Council’s review. 10 (AR 276-77, 362-65, 488-91.) 11 narcotic pain medications. 12 Both Vicodin and oxycodone are Nor was Plaintiff’s treatment “conservative.” Dr. Gilbert 13 treated Plaintiff’s gout and lower-back pain with colchicine, 14 Uloric, and multiple joint injections. 15 The use of narcotics to control pain in conjunction with a series 16 of regular injections does not constitute “conservative” 17 treatment. 18 664 (9th Cir. 2010) (treatment with narcotic pain medication, 19 occipital nerve blocks, trigger-point injections, and 20 cervical-fusion surgery not conservative); Samaniego v. Astrue, 21 No. EDCV 11-865 JC, 2012 WL 254030, at *4 (C.D. Cal. Jan. 27, 22 2012) (treatment not conservative when claimant was treated “on a (See AR 362-65, 488-91.) See, e.g., Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 23 24 25 16 Debridement is the excision of devitalized tissue and foreign matter from a wound. Stedman’s Medical Dictionary 460 (27th ed. 2000). 26 17 27 28 “Washout” means to disperse or empty by flooding with water or another solvent. See Washout, Medical Dictionary, https://medical-dictionary.thefreedictionary.com/washout (last visited Jan. 9, 2018). 18 1 continuing basis” with steroid and anesthetic “trigger point 2 injections,” occasional epidural injections, and narcotic 3 medication and doctor recommended surgery); Christie v. Astrue, 4 No. CV 10-3448-PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 5 2011) (treatment with “narcotic pain medication, steroid 6 injections, trigger point injections, epidural shots, and 7 cervical traction” not conservative); Ruiz v. Berryhill, No. CV 8 16-2580-SP, 2017 WL 4570811, at *5-6 (C.D. Cal. Oct. 11, 2017) 9 (treatment by “narcotic medication, facet joint injections, and 10 epidural steroid injections” not conservative). 11 The ALJ also found that Plaintiff “did not report any 12 adverse side-effects from any of his prescribed medications.” 13 (AR 48.) 14 the hearing that he had no side effects from the medications he 15 was then taking other than “drowsiness” (AR 73), he wrote in his 16 Pain Questionnaire that the medicines caused “fatigue, weakness, 17 dizziness[, and] diarrhea” (AR 200). 18 experienced significant side effects, such as “hepatic and renal 19 failure,” when he took allopurinol18 to treat his gout. 20 491.) 21 side effects from prescribed medications” in making a credibility 22 determination, see Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 23 1995) (per curiam), here the ALJ misconstrued the record. 24 That too is incorrect. Although Plaintiff testified at Further, in the past he had (See AR Although the ALJ is “allowed to consider . . . the lack of Moreover, the relevant analysis is whether Plaintiff’s 25 26 18 27 28 Allopurinol treats gout by reducing the amount of uric acid made by the body. See Allopurinol, WebMD, https:// www.webmd.com/drugs/2/drug-8610/allopurinol-oral/details (last visited Jan. 9, 2018). 19 1 severe impairments caused disabling pain rather than whether his 2 medication caused side effects. 3 and received multiple injections to treat it. 4 He said he experienced “constant,” “throbbing” pain, heat, and 5 swelling in his joints, lower back, feet, knees, legs, and hands. 6 (AR 199.) 7 pain [was] consistent with the medical records” but then held 8 that “his pain [did] not preclude work activity” without 9 providing a clear and convincing reason why. Plaintiff alleged “daily” pain (See AR 70, 199.) The ALJ found that Plaintiff’s “characterization of (See AR 48.) He 10 stated that Plaintiff “was able to fully participate in the 11 hearing without being distracted by pain” (id.), but his being 12 able to sit through a 30-minute hearing does not show that he 13 could work eight hours a day for five days a week on a sustained 14 basis. 15 1985) (per curiam) (“Denial of benefits cannot be based on the 16 ALJ’s observation of [Plaintiff], when [Plaintiff]’s statements 17 to the contrary . . . are supported by objective evidence.”). 18 See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. For all these reasons, the ALJ failed to provide a clear and 19 convincing reason for his adverse credibility determination. 20 Plaintiff is therefore entitled to remand on this ground.19 21 22 23 24 25 26 27 28 19 The ALJ also noted that “there were no opinions of record that found that the [Plaintiff] was disabled.” (AR 48.) As Plaintiff argues (see J. Stip. at 26-27), Dr. Gilbert’s November 26, 2014 statement may have been before the ALJ (compare AR 44041 (showing that statement was faxed on Dec. 5, 2014, four days before ALJ’s decision), with AR 6 (showing Appeals Council making statement part of record on June 6, 2016)), and yet the ALJ did not discuss it. Though Dr. Gilbert does not directly opine in the statement that Plaintiff was disabled, he does find limitations significantly more serious than those assessed by the ALJ. (See AR 441.) On remand, the ALJ should expressly consider Dr. Gilbert’s treating-physician opinion. 20 1 B. Remand for Further Proceedings Is Appropriate 2 Plaintiff “seeks an order from the Court reversing the final 3 decision and awarding benefits.” 4 here, an ALJ errs, the Court generally has discretion to remand 5 for further proceedings. 6 1132 (9th Cir. 2017); Harman v. Apfel, 211 F.3d 1172, 1175-78 7 (9th Cir. 2000) (as amended); Connett v. Barnhart, 340 F.3d 871, 8 876 (9th Cir. 2003) (“credit as true” doctrine is not mandatory). 9 When no useful purpose would be served by further administrative (J. Stip. at 33.) When, as See Leon v. Berryhill, 874 F.3d 1130, 10 proceedings, however, or when the record has been fully 11 developed, it is appropriate under the “credit as true” rule to 12 direct an immediate award of benefits. 13 1179 (noting that “the decision of whether to remand for further 14 proceedings turns upon the likely utility of such proceedings”); 15 Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014). 16 See Harman, 211 F.3d at When the ALJ’s findings are so “insufficient” that the Court 17 cannot determine whether the rejected testimony should be 18 credited as true, the Court has “some flexibility” in applying 19 the credit-as-true rule. 20 Garrison, 759 F.3d at 1020 (noting that Connett established that 21 credit-as-true rule may not be dispositive in all cases). 22 flexibility should be exercised “when the record as a whole 23 creates serious doubt as to whether the claimant is, in fact, 24 disabled within the meaning of the Social Security Act.” 25 Garrison, 759 F.3d at 1021. 26 each injection significantly relieved Plaintiff’s joint pain and 27 his lower-back pain was reasonably controlled by medication. 28 Connett, 340 F.3d at 876; see also This Such doubt exists here, given that Accordingly, further administrative proceedings would serve 21 1 the useful purpose of allowing the ALJ to reassess Plaintiff’s 2 statements’ credibility, and if he again finds them “not fully 3 credible” (AR 48), provide a clear and convincing reason for that 4 finding. 5 opinion and reevaluate Plaintiff’s RFC in light of that evidence. 6 Thus, remand is appropriate. 7 n.26. 8 VI. 9 He may also assess Dr. Gilbert’s November 26, 2014 See Garrison, 759 F.3d at 1020 CONCLUSION Consistent with the foregoing and under sentence four of 42 10 U.S.C. § 405(g),20 IT IS ORDERED that judgment be entered 11 REVERSING the Commissioner’s decision as to Plaintiff’s SSI 12 application only, GRANTING Plaintiff’s request for remand, and 13 REMANDING this action for further proceedings consistent with 14 this memorandum decision. 15 16 DATED: January 10, 2018 17 _____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 20 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 22
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