Frank T. Lopez v. Carolyn W. Colvin, No. 2:2016cv09666 - Document 27 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Alexander F. MacKinnon. (See document for details). (ib)
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Frank T. Lopez v. Carolyn W. Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. CV 16-09666 AFM FRANK T. LOPEZ, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 17 18 Plaintiff seeks review of the Commissioner’s final decision denying his 19 applications for disability insurance benefits and supplemental security income. In 20 accordance with the Court’s case management order, the parties have filed 21 memorandum briefs addressing the merits of the disputed issues. This matter now 22 is ready for decision. 23 BACKGROUND 24 25 On February 27, 2013, Plaintiff applied for disability insurance benefits and 26 supplemental security income. Plaintiff’s claim was denied initially and on 27 reconsideration. A hearing was then held before an Administrative Law Judge 28 (“ALJ”) with Plaintiff, his attorney, and a vocational expert (“VE”) present. Dockets.Justia.com 1 (Administrative Record (“AR”) 36-52.) On August 5, 2015, the ALJ entered a 2 decision determining Plaintiff’s residual functional capacity (“RFC”) of medium 3 work with limitations to frequent overhead reaching with the left arm. (AR 22-35.) 4 The VE testified that a person with the RFC could perform Plaintiff’s past work as 5 a combination medical assistant and x-ray technician, both light vocations. (AR 48- 6 51.) The ALJ adopted this vocational finding and concluded that Plaintiff could 7 perform his past work. (AR 30.) The Appeals Council denied review. (AR 1-7.) 8 Plaintiff filed his Complaint in the present case on December 31, 2016. 9 10 11 DISPUTED ISSUE Whether the ALJ properly assessed Plaintiff’s subjective symptom testimony. 12 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 15 determine whether the Commissioner’s findings are supported by substantial 16 evidence and whether the proper legal standards were applied. See Treichler v. 17 Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 18 Substantial evidence means “more than a mere scintilla” but less than a 19 preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter 20 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such 21 relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Richardson, 402 U.S. at 401. Where evidence is susceptible of more 23 than one rational interpretation, the Commissioner’s decision must be upheld. See 24 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 25 26 DISCUSSION 27 Where, as in this case, the claimant has produced objective medical evidence 28 of an impairment which could reasonably be expected to produce some degree of 2 1 pain and/or other symptoms, and the record is devoid of any affirmative evidence of 2 malingering, the ALJ may reject the claimant’s testimony regarding the severity of 3 the claimant’s pain and/or other symptoms only if the ALJ makes specific findings 4 stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 5 1403, 1407 (9th Cir. 1986); see also Bunnell v. Sullivan, 947 F.2d 341, 343 (9th 6 Cir. 1991) (en banc). “A finding that a claimant’s testimony is not credible ‘must 7 be sufficiently specific to allow a reviewing court to conclude the adjudicator 8 rejected the claimant’s testimony on permissible grounds and did not arbitrarily 9 discredit a claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin, 806 10 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell, 947 F.2d at 345-46). “The clear 11 and convincing standard is the most demanding required in Social Security cases.” 12 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). 13 14 Plaintiff here testified at the hearing about the nature and extent of his condition. (AR 39-48.) The ALJ’s credibility determination is found at AR 30: 15 16 17 18 19 20 21 22 23 The undersigned has further considered the claimant’s allegations of a disabling condition and finds them to be partially credible. The medical records do not support the severity of the symptoms. Moreover, although the claimant has had a history of work related accident and motor vehicle accident, these incidents occurred several years ago. Additionally, the claimant testified at the hearing that he is capable of performing household chores such as cleaning, grocery shopping, cooking and doing laundry. Moreover, he testified that he is able to stand for as long as he wants but experiences some swelling of the ankles afterwards. He further testified that he walks about 1.5 miles every day. 24 25 The Court reads the decision as setting forth three reasons in support of the 26 partial credibility finding. First, the ALJ referred to the fact that Plaintiff had motor 27 vehicle and work accidents that occurred several years ago. (AR 30.) However, the 28 ALJ gave no explanation how that affected the believability of Plaintiff’s testimony 3 1 or what aspect of the testimony was found not credible due to the prior accidents. 2 In particular, the ALJ did not describe how the timing of those accidents is 3 inconsistent with specific symptom claims made by Plaintiff or how they 4 correspond to Plaintiff’s ability to obtain and maintain employment. Thus, the 5 ALJ’s brief mention of Plaintiff’s prior accidents happening several years ago does 6 not provide a valid basis for the partial credibility finding. See Lester v. Chater, 81 7 F.3d 821, 834 (9th Cir. 1995) (“General findings are insufficient; rather, the ALJ 8 must identify what testimony is not credible and what evidence undermines the 9 claimant’s complaints”); Brown-Hunter, 806 F.3d at 493-94 (generalized adverse 10 credibility findings are insufficient). 11 Second, the ALJ cited to Plaintiff’s activities of daily living. (AR 30.) The 12 Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in 13 concluding that daily activities are inconsistent with testimony about pain, because 14 impairments that would unquestionably preclude work and all the pressures of a 15 workplace environment will often be consistent with doing more than merely 16 resting in bed all day.” Garrison, 759 F.3d at 1016. As the Ninth Circuit has 17 further stated, “the mere fact that a plaintiff has carried on certain daily activities, 18 such as grocery shopping, driving a car, or limited walking for exercise, does not in 19 any way detract from her credibility as to her overall disability.” Vertigan v. 20 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). In this case, the ALJ did what the 21 Ninth Circuit cautioned against: referring to Plaintiff’s daily activities and 22 apparently concluding that they were partially inconsistent with Plaintiff’s claimed 23 disability. The ALJ’s decision identifies Plaintiff’s ability to do household chores 24 (specifically “cleaning, grocery shopping and doing laundry”), to stand for as long 25 as he wants, and to walk 1.5 miles per day. (AR 30.) However, the ALJ did not 26 describe how those activities are inconsistent with specific symptom claims made 27 by Plaintiff. Nor does the decision explain how Plaintiff’s activities permit him to 28 obtain and maintain a job. Citing plaintiff’s ability to perform basic activities 4 1 without explaining how these activities are inconsistent with plaintiff’s complaints 2 is legally insufficient. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) 3 (“the ALJ did not elaborate on which daily activities conflicted with which part of 4 Claimant’s testimony”); Lester, 81 F.3d at 834. As a result of this lack of 5 specificity, the decision’s reference to Plaintiff’s daily activities is an inadequate 6 basis for the ALJ’s credibility determination. See Brown-Hunter, 806 F.3d at 493- 7 94. 8 Third, the ALJ found that Plaintiff’s allegations regarding the severity of his 9 symptoms and limitations were greater than what the objective medical evidence 10 shows. (AR 30.) Because the ALJ’s prior two reasons are insufficient, this 11 remaining reason cannot be legally sufficient by itself to support the adverse 12 credibility determination. See Robbins v. Social Sec. Admin., 466 F.3d 880, 884 13 (9th Cir. 2006) (where ALJ’s initial reason for adverse credibility determination 14 was legally insufficient, his sole remaining reason premised on lack of medical 15 support for claimant’s testimony was legally insufficient); Light v. Social Sec. 16 Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that the claimant lacks 17 credibility cannot be premised wholly on a lack of medical support for the severity 18 of his pain.”). Lack of objective medical evidence may be a factor an ALJ can 19 consider in his credibility analysis, but it cannot form the sole basis for a credibility 20 determination. 21 (“Although lack of medical evidence cannot form the sole basis for discounting 22 pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”). See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 23 Finally, to the extent the Commissioner refers to other purported reasons of 24 the ALJ that are not found in the decision (or relies on facts and evidence beyond 25 that discussed in connection with the ALJ’s credibility assessment), those reasons 26 cannot be used by the Court to support the otherwise inadequate credibility 27 determination. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We 28 are constrained to review the reasons the ALJ asserts.”); Brown-Hunter, 806 F.3d at 5 1 494 (finding error in district court’s reliance on inconsistencies in claimant’s 2 testimony that were identified by the ALJ’s decision). 3 4 In sum, reversal is warranted based on the errors in the ALJ’s credibility determination. 5 6 REMAND FOR FURTHER ADMINISTRATIVE PROCEEDINGS 7 Ninth Circuit case law “precludes a district court from remanding a case for 8 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 9 808 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 10 determine that the ALJ made a legal error, such as failing to provide legally 11 sufficient reasons for rejecting evidence. . . . If the court finds such an error, it must 12 next review the record as a whole and determine whether it is fully developed, is 13 free from conflicts and ambiguities, and all essential factual issues have been 14 resolved.” Id. (citation and internal quotation marks omitted). 15 Although the Court has found error as discussed above, the record on the 16 whole is not fully developed, and factual issues remain outstanding. The issues 17 concerning Plaintiff’s alleged disability “should be resolved through further 18 proceedings on an open record before a proper disability determination can be made 19 by the ALJ in the first instance.” See Brown-Hunter, 806 F.3d at 496; see also 20 Treichler, 775 F.3d at 1101 (remand for award of benefits is inappropriate where 21 “there is conflicting evidence, and not all essential factual issues have been 22 resolved”) (citation omitted); Strauss v. Commissioner of the Social Sec. Admin., 23 635 F.3d 1135, 1138 (9th Cir. 2011) (same where the record does not clearly 24 demonstrate the claimant is disabled within the meaning of the Social Security Act). 25 Therefore, based on its review and consideration of the entire record, the 26 Court has concluded on balance that a remand for further administrative 27 proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is 28 not the Court’s intent to limit the scope of the remand. 6 ORDER 1 2 IT IS ORDERED that Judgment be entered reversing the decision of the 3 Commissioner of Social Security and remanding this matter for further 4 administrative proceedings. 5 6 DATED: January 30, 2018 7 8 9 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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