Ana Lopez v. Nancy Berryhill, No. 2:2017cv02310 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that: (1) the decision of the Commissioner is REVERSED and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Memorandum Opinion and Order; and (2) Judgment be entered in favor of Plaintiff. (ec)
Download PDF
<![CDATA[
Ana Lopez v. Nancy Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Plaintiff v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER Defendant. 17 18 Case No. 2:17-cv-02310-GJS ANA LOPEZ, I. PROCEDURAL HISTORY Plaintiff Ana Lopez (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying her applications for 20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 The parties filed consents to proceed before the undersigned United States 22 Magistrate Judge [Dkts. 10 and 11] and briefs addressing disputed issues in the case 23 [Dkt. 17 (“Pltf.’s Br.”), Dkt. 18 (“Def.’s. Br.”), and Dkt. 19 (“Pltf.’s Reply)]. The 24 Court has taken the parties’ briefing under submission without oral argument. For 25 the reasons discussed below, the Court finds that this matter should be remanded for 26 further proceedings. 27 28 Dockets.Justia.com 1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 In September 2013, Plaintiff filed applications for DIB and SSI, alleging 3 disability as of August 15, 2013. [Dkt. 16, Administrative Record (“AR”) 186, 4 188.] Plaintiff’s applications were denied at the initial level of review and on 5 reconsideration. [AR 124, Def’s Br. at 2] On May 12, 2015, a hearing was held 6 before Administrative Law Judge James P. Nguyen (“the ALJ”). [AR 24.] On 7 March 4, 2015, the ALJ issued an unfavorable decision. [AR 24-31.] 8 9 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). 10 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 11 activity since the alleged onset date. [AR 27.] At step two, the ALJ found that 12 Plaintiff suffered from the severe impairments of degenerative disc disease of the 13 cervical and thoracic spine; strain of the cervical and thoracic spine, left knee strain; 14 dyslipidemia; left shoulder tendinitis; a history of carpal tunnel syndrome; and a 15 history of carcinoma of the thyroid gland, status post thyroidectomy. [Id.] At step 16 three, the ALJ determined that Plaintiff did not have an impairment or combination 17 of impairments that meets or medically equals the severity of one of the 18 impairments listed in Appendix I of the Regulations, (“the Listings”). [AR 28]; see 19 20 C.F.R. Pt. 404, Subpt. P, App. 1. Next, the ALJ found that Plaintiff had the 20 residual functional capacity (“RFC”) to perform light work (20 C.F.R. §§ 21 404.1567(b), 416.967(b)) with the following additional nonexertional limitations: 22 23 24 25 26 [Plaintiff is] able to climb ladders, ropes, and scaffolds occasionally; otherwise, able to perform frequent climbing for ramps and stairs, as well as frequent balancing, stooping, kneeling, crouching, and crawling; able to perform occasional overhead reaching; and able to perform frequent handling and fingering with the upper extremities. 27 28 [AR 28.] Applying this RFC, the ALJ found that Plaintiff was capable of 2 1 performing her past relevant work as an electronic assembler, and was, thus, not 2 disabled. [AR 30-31.] 3 4 5 6 The Appeals Council denied review of the ALJ’s decision on January 25, 2017. [AR 1-4.] This action followed. III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 7 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 8 and (2) the Commissioner used correct legal standards. Carmickle v. Comm’r, Soc. 9 Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 10 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 12 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 13 also Hoopai, 499 F.3d at 1074. 14 15 IV. DISCUSSION Plaintiff contends that the ALJ erred by: (1) finding that Plaintiff did not 16 meet a listing at step three, and (2) improperly discrediting Plaintiff’s testimony. 17 [Pltf.’s Br. at 1.] As set forth below, the Court agrees with Plaintiff, in part, and 18 remands the matter for further proceedings. Because the Court finds Plaintiff’s 19 second argument regarding her credibility compelling, this memorandum does not 20 deal with Plaintiff’s contention that the ALJ improperly found that none of her 21 impairments met a listing. However, the ALJ should consider this issue on remand. 22 A. ALJ Failed to Properly Consider Plaintiff’s Subjective Complaints 23 Plaintiff contends that the ALJ failed to state sufficient reasons for 24 25 discounting her credibility. [Pltf.’s Br. at 5-7.] Once a disability claimant produces evidence of an underlying physical or 26 mental impairment that could reasonably be expected to produce the symptoms 27 alleged and there is no affirmative evidence of malingering, the ALJ must offer 28 “specific, clear and convincing reasons” to reject the claimant’s testimony. Brown3 1 Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015); Smolen v. Chater, 80 F.3d 2 1273, 1283-84 (9th Cir. 1996). The ALJ must identify what testimony is not 3 credible and what evidence discredits the testimony. See Treichler v. Comm’r, Soc. 4 Sec. Admin., 775 F.3d 1090, 1102-03 (9th Cir. 2014); Reddick v. Chater, 157 F.3d 5 715, 722 (9th Cir. 1998). But if the ALJ’s assessment of the claimant’s testimony is 6 reasonable and is supported by substantial evidence, it is not the Court’s role to 7 “second-guess” it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 8 As an initial matter, the Court notes that Plaintiff testified through an 9 interpreter. It appears from the English transcript that both the ALJ and Plaintiff 10 may have been having trouble clearly understanding each other (the interpreter even 11 interrupted at one point to attempt to offer an explanation of what Plaintiff may have 12 meant). [AR 56-57.] Even if that was not the case, the transcript itself is not a 13 model of clarity. [E.g., AR 54 (indicates Plaintiff is speaking, but transcribed as: 14 “The interpreter requires some repetition. To me, it sounds a little convoluted and I 15 couldn’t make sense of what she was saying. Is that okay?”)]. But essentially, 16 Plaintiff testified that she had a license but did not drive (when asked if she had 17 difficulty driving, she answered, “Yes, with my hands.”). [AR 46.] She further 18 testified that the medication she was taking for her thyroid condition post-cancer, 19 the dosage of which had been changed recently, made her “have a lot of anxieties,” 20 [AR 49-50.] She complained about knee and shoulder pain as well. [AR 52-53.] 21 With respect to her neck pain, she was “taking a lot of meds,” and had been going to 22 physical therapy but told her doctor that she “can’t handle that.” [AR 50.] Finally, 23 although the ALJ made a valiant attempt to get a clear record with respect to 24 whether or not Plaintiff had been referred for surgery or just for a further evaluation 25 about whether surgical intervention would be a good option for Plaintiff’s cervical 26 spine issues – and ultimately determined that no medical source had, at that point, 27 recommended surgical intervention – it is unclear to the Court what actually 28 transpired, if anything, between Plaintiff and her doctors. [AR 56-57, 59-62.] The 4 1 ALJ offered to leave the record open for 30 days, but Plaintiff’s non-lawyer 2 representative did not believe he could obtain additional records in that time. 3 As to her limitations, Plaintiff testified that she could only lift a half gallon of 4 milk, as opposed to a gallon, and she had trouble grasping things. [AR 58.] She 5 also testified that she depends on others to do household chores. [AR 46.] 6 The ALJ found that her medically determinable impairments could reasonably 7 be expected to cause the symptoms about which she testified, but did not find her 8 statements about “the intensity, persistence and limiting effects” of her symptoms to 9 be entirely credible. [AR 29.] 10 The ALJ first noted that the record showed that Plaintiff collected 11 unemployment benefits in the amount of $898 in the third quarter of 2013, allegedly 12 subsequent to her alleged onset date, but did not elaborate further. The only 13 additional reason the ALJ gave for discounting Plaintiff’s testimony was that “the 14 medical evidence of record documents only conservative treatment.” [Id.] 15 Although the ALJ went on to discuss many of the indications in the medical records 16 that Plaintiff retained relatively normal function in many areas (and discusses and 17 discounts a treating physician’s evaluation to the contrary, as well), the only 18 discussion of conservative treatment is the ALJ’s note that “the record apparently 19 does not document a referral for surgery nor does it show any epidural steroid 20 injections.” [Id.] 21 As an initial matter, it is notable that the ALJ found that Plaintiff’s statements 22 were consistent both throughout the medical record and in her testimony. [AR 29.] 23 And as Plaintiff correctly points out in her briefs, the record shows that 24 Plaintiff was seeking medical treatment for her cervical spine pain when her course 25 of treatment was interrupted by a bout of thyroid cancer. When cleared of the 26 cancer, Plaintiff again sought treatment for her neck (and other area) pain. She was 27 treated with fairly heavy-duty narcotics, and had at least one toradol shot. [AR 391- 28 93]. Although she did not have an epidural injection, one doctor did recommend 5 1 that she get a shot. [AR 394]. And while the ALJ notes that Plaintiff stated at one 2 point that she was afraid of surgical procedures, at a subsequent point in her 3 testimony she spoke about the possibility of having surgery done. [E.g., AR 61.] 4 Based on the dearth of explanation as to what the ALJ considered “conservative” 5 treatment and his failure to address the treatment that Plaintiff actually was 6 receiving, and in light of the nearly complete lack of clarity in Plaintiff’s translated 7 testimony, it was incumbent on the ALJ to explain more specifically what 8 statements he discredited, and why he discredited them. The Court thus finds that 9 the ALJ did not provide at least one specific and legitimate reason supported by 10 11 substantial evidence to discount Plaintiff’s testimony. V. CONCLUSION 12 When the Court reverses an ALJ’s decision for error, the Court “ordinarily 13 must remand to the agency for further proceedings.” Leon v. Berryhill, 874 F.3d 14 1130, 1132 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 15 (“the proper course, except in rare circumstances, is to remand to the agency for 16 additional investigation or explanation”); Treichler, 775 F.3d at 1099. But the Court 17 does have discretion to make a direct award of benefits under the “credit-as-true” 18 rule, which asks whether: “(1) the record has been fully developed and further 19 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 20 provide legally sufficient reasons for rejecting evidence, whether claimant testimony 21 or medical opinion; and (3) if the improperly discredited evidence were credited as 22 true, the ALJ would be required to find the claimant disabled on remand.” 23 Garrison, 759 F.3d at 1020. Each part of this three-part standard must be satisfied 24 for the Court to remand for an award of benefits, id., and it is only the “unusual 25 case” that meets this standard, Benecke, 379 F.3d at 595. See, e.g., Treichler, 775 26 F.3d at 1105 (“[A] reviewing court is not required to credit claimants’ allegations 27 regarding the extent of their impairments as true merely because the ALJ made a 28 legal error in discrediting their testimony.”). Moreover, if “an evaluation of the 6 1 record as a whole creates serious doubt that a claimant is, in fact, disabled,” a court 2 must remand for further proceedings “even though all conditions of the credit-as- 3 true rule are satisfied.” Garrison, 759 F.3d at 1021; see also Leon, 874 F.3d at 1133 4 (“an award under [the credit-as-true] rule is a rare exception, and the rule was 5 intended to deter ALJs from providing boilerplate rejections without analysis”); 6 Brown-Hunter, 806 F.3d at 495 (“The touchstone for an award of benefits is the 7 existence of a disability, not the agency’s legal error.”). 8 Here, given the ALJ’s insufficient consideration of Plaintiff’s subjective 9 symptom testimony, questions regarding the extent to which Plaintiff’s pain and 10 symptoms limit her ability to work remain unresolved. See, e.g., Brown-Hunter, 11 806 F.3d at 495-96. Therefore, in accordance with Plaintiff’s request, the Court 12 concludes that remand for further proceedings is warranted. [Pltf.’s Br. at 24; Pltf’s 13 Reply at 10]; see Treichler, 775 F.3d at 1107; see also Connett v. Barnhart, 340 14 F.3d 871, 876 (9th Cir. 2003) (remand for further proceedings appropriate when the 15 ALJ’s findings are so insufficient that the reviewing court cannot determine whether 16 the claimant’s rejected testimony should be credited as true). 17 For all of the foregoing reasons, IT IS ORDERED that: 18 (1) the decision of the Commissioner is REVERSED and this matter is 19 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 20 administrative proceedings consistent with this Memorandum Opinion and 21 Order; and 22 (2) Judgment be entered in favor of Plaintiff. 23 24 IT IS SO ORDERED. 25 26 27 DATED: February 22, 2018 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
