Rachel Victoria Bingham v. Andrew Saul, No. 2:2020cv02053 - Document 19 (C.D. Cal. 2020)
Court Description: MEMORANDUM AND OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. IT IS HEREBY ORDERED that this matter is remanded for further administrativeaction consistent with this Opinion. The decision of the Commissioner of the Social Security Administration is reversed in part and this matter is remanded for further administrative action consistent with this Opinion. (See document for further details) (vmun)
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Rachel Victoria Bingham v. Andrew Saul Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 RACHEL V. B., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. CV 20-2053-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that this matter is remanded for further administrative 20 action consistent with this Opinion. 21 22 PROCEEDINGS 23 24 Plaintiff filed a complaint on March 2, 2020, seeking review of 25 the Commissioner’s denial of benefits. The parties consented to 26 proceed before a United States Magistrate Judge on April 15, 2020. 27 Following the retirement of Magistrate Judge Walsh, the case was 28 transferred to Magistrate Judge Eick on August 21, 2020. The parties Dockets.Justia.com 1 filed a Joint Stipulation on November 10, 2020. The Court has taken 2 the matter under submission without oral argument. See L.R. 7-15. 3 4 BACKGROUND 5 6 Plaintiff asserts disability since January 7, 2015, based on 7 alleged physical impairments (Administrative Record (“A.R.”) 247-48, 8 261, 300). 9 and heard testimony from Plaintiff and a vocational expert (A.R. 15- An Administrative Law Judge (“ALJ”) reviewed the record 10 25, 81-115). Plaintiff testified that, because of pain, she could 11 lift only five pounds or less and could sit for only five or ten 12 minutes before having to change positions (A.R. 95, 97). 13 14 The ALJ found that Plaintiff has severe: (1) right shoulder 15 impingement, rotator cuff tear and degenerative joint disease, status- 16 post arthroscopy; (2) history of adhesive capsulitis; (3) diabetes 17 mellitus type 2 with hyperglycemia in stable condition; (4) 18 neuralgia; (5) cervical spine degenerative disc disease, status-post 19 discectomy in December 2015; (6) carpal tunnel syndrome; and 20 (7) obesity (A.R. 18). 21 retains the residual functional capacity for light work (which 22 involves lifting/carrying 20 pounds occasionally and 10 pounds 23 frequently), limited to no more than frequent stooping, kneeling, 24 crouching and balancing, occasional crawling, no climbing of ladders, 25 ropes or scaffolds, occasional reaching overhead with her right upper 26 extremity, and occasional handling, feeling and fingering (A.R. 19-23 27 (rejecting Plaintiff’s allegations of greater limitations)). 28 deemed Plaintiff capable of performing work as an usher and counter occipital However, the ALJ also found that Plaintiff The ALJ 1 clerk and, on that basis, denied disability benefits (A.R. 24-25 2 (adopting vocational expert testimony at A.R. 110-11)).1 3 Council denied review (A.R. 1-3). The Appeals 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. section 405(g), this Court reviews the 8 Administration’s decision to determine if: (1) the Administration’s 9 findings are supported by substantial evidence; and (2) the 10 Administration used correct legal standards. See Carmickle v. 11 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 12 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 13 682 F.3d 1157, 1161 (9th Cir. 2012). 14 relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion.” 16 (1971) (citation and quotations omitted); see also Widmark v. 17 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 18 19 If the evidence can support either outcome, the court may 20 not substitute its judgment for that of the ALJ. 21 Commissioner’s decision cannot be affirmed simply by 22 isolating a specific quantum of supporting evidence. 23 Rather, a court must consider the record as a whole, 24 weighing both evidence that supports and evidence that But the 25 26 27 28 1 The vocational expert testified that, if a person were further limited to lifting and carrying 10 pounds occasionally and five pounds frequently, there would be no work that person could perform (A.R. 112). 2 1 detracts from the [administrative] conclusion. 2 3 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 4 quotations omitted). 5 6 DISCUSSION 7 8 9 After consideration of the record as a whole, the Court reverses the Administration’s decision in part and remands the matter for 10 further administrative proceedings. As discussed below, the 11 Administration materially erred in evaluating the evidence of record. 12 13 14 I. Summary of the Medical Record and Plaintiff’s Subjective Complaints. 15 16 Treatment records reflect consistent complaints of pain despite 17 escalating treatment. Plaintiff’s treatment began with chiropractic 18 care, physical therapy and acupuncture coupled with anti-inflammatory 19 medications. 20 medications, steroid injections, and surgeries. Eventually, her treatment progressed to narcotic pain 21 22 Plaintiff had a right shoulder injection in September of 2014, 23 after chiropractic treatment had failed to improve her pain (A.R. 466- 24 67, 479-80, 487-88, 491-97). 25 with mild acromioclavicular joint degenerative changes (A.R. 468-69). 26 By mid-October, Plaintiff reported having a painful frozen shoulder 27 that had improved by only a few degrees over the previous month and a 28 half with chiropractic treatment (A.R. 503). A MRI showed two right shoulder tears 3 The next week she 1 reported that her pain had decreased but she was not “a hundred 2 percent” (A.R. 505). 3 physical therapy and chiropractic treatment had improved her neck pain 4 but she still had shoulder pain (A.R. 506). 5 of chiropractic treatment, Plaintiff reported continued pain and 6 reduced range of motion in her shoulder and neck, moving into her mid 7 back (A.R. 507-22). On October 27, 2014, Plaintiff reported that Over the next two months 8 9 On January 7, 2015 (the alleged onset date), Plaintiff presented 10 to Memorial Care Medical Group, reporting that she had been rear ended 11 that morning on the freeway, which had caused her neck to snap with 12 ensuing tightness, right side tingling and bilateral side pain (A.R. 13 399, 537-42). 14 chiropractor for electric stimulation (A.R. 400; see also A.R. 524, 15 544-51 (chiropractic treatment note and “Doctors [sic] Excuse” form 16 stating that Plaintiff was restricted from work until January 9, 17 2015)). 18 reportedly had right shoulder impingement syndrome, cervical 19 radiculopathy and diabetes mellitus since at least October of 2014 20 (A.R. 400). 21 800 mg ibuprofen and referred for physical therapy (A.R. 401-04).2 After the accident, Plaintiff had gone to her On examination at the Memorial Care Medical Group, Plaintiff Plaintiff was diagnosed with back pain/strain, prescribed 22 23 24 In April of 2015, Plaintiff was diagnosed with cervical and lumbar radiculopathy, right shoulder impingement and adhesive 25 26 27 28 2 Plaintiff also followed up for regular chiropractic treatment through at least July of 2015, reporting fluctuating pain and decline in certain activities (e.g., driving, computer work, cooking and gardening) (A.R. 552-648). 4 1 capsulitis based on cervical and lumbar spine MRI studies (A.R. 658; 2 see A.R. 649-51 (April, 2015 cervical spine MRI showing C6-C7 central 3 to right foraminal disc extrusion without canal stenosis, with 4 uncovertebral spurring contributing to mild to moderate right and mild 5 left neural foraminal stenosis, and mild disc disease at C5-C6 without 6 stenosis), A.R. 652-53 (April, 2015 lumbar spine MRI showing mild disc 7 disease at L5-S1 with slight effacement of the L5 nerve root). 8 9 In June of 2015, Plaintiff reportedly presented with, inter alia, 10 acute cervical and thoracic sprain, rotator cuff tear with arthropathy 11 of the right shoulder, labral tear of the right shoulder and 12 uncontrolled type 2 diabetes (A.R. 426). 13 mg ibuprofen, and referred for a diabetes management appointment (A.R. 14 429-30). She was prescribed Soma, 800 15 16 In October of 2015, orthopedic surgeon Dr. Sam Bakshian evaluated 17 Plaintiff’s severe cervical spine pain radiating into her right 18 shoulder and arm, as confirmed by a cervical EMG/nerve conduction 19 study (A.R. 857-58). 20 Plaintiff underwent a cervical spine discectomy and fusion at C6-C7 21 with hardware placement on December 1, 2015 (A.R. 678-704). 22 Plaintiff recovered from her surgery, she noted an increase in her 23 right shoulder pain (A.R. 708). Dr. Bakshian recommended surgery (id.). As 24 25 Orthopedic surgeon Dr. Howard J. Marans evaluated Plaintiff’s 26 right shoulder on March 2, 2016, and prepared a Comprehensive 27 Orthopedic Consultation report (A.R. 707-10). 28 constant, moderate to severe pain in her right shoulder radiating down 5 Plaintiff complained of 1 to the elbow and right thumb with numbness and tingling, increased by 2 reaching, pushing, pulling, driving and most movements, with popping, 3 grinding and cracking in her right shoulder, not relieved by heat, ice 4 or medication (A.R. 707). 5 at 60 percent of the normal range with pain, positive impingement 6 signs and marked tenderness (A.R. 709). 7 rotator cuff tearing, which was worse than before Plaintiff’s car 8 accident (A.R. 709). 9 arthroscopy and subacromial decompression with rotator cuff repair and On examination, she had a range of motion An MRI revealed bursal-sided Dr. Marans recommended right shoulder 10 debridement, given that Plaintiff had not had long-term benefit from 11 anti-inflammatory medications, physical therapy or multiple 12 corticosteroid injections (A.R. 709). 13 recommended surgery (see A.R. 719-21 (surgery notes)) and followed up 14 on April 6, 2016, one week after her surgery, when she was approved to 15 start physical therapy (A.R. 711-12). 16 reported that she was doing well and her preoperative pain was gone 17 (A.R. 713-14). 18 preoperative pain was improved, but she was having very significant 19 postoperative discomfort (A.R. 717). Plaintiff underwent the On April 20, 2016, Plaintiff On May 13, 2016, however, Plaintiff reported that her 20 21 A state agency physician reviewed the record in July of 2016, and 22 deemed Plaintiff capable of light work limited to no more than 23 frequent postural activities, except for occasional crawling, no 24 climbing ladders/ropes/scaffolds, and occasional right side overhead 25 reaching (A.R. 116-26). 26 another state agency physician opined that Plaintiff would also be 27 limited to no more than frequent fingering/handling with the right 28 upper extremity (A.R. 140-50). On reconsideration in October of 2016, 6 1 Meanwhile, Dr. Bakshian evaluated Plaintiff on October 5, 2016, 2 for bilateral hand numbness and tingling, as well as neck, arm and 3 right hip pain (A.R. 852-53). 4 Plaintiff’s upper extremities was abnormal, showing evidence of 5 moderate bilateral carpal tunnel syndrome (A.R. 845-47). 6 diagnosed status post anterior cervical discectomy and fusion at C5-C6 7 with right upper extremity radiation (improved), status post right 8 shoulder arthroscopy, lumbosacral sprain/strain with presumed 9 discopathy at L5-S1, acute onset of neck and upper back pain with A July, 2016 electrodiagnostic study of Dr. Bakshian 10 radiation, numbness, tingling and weakness in both upper extremities, 11 right-sided sacroiliitis versus lumbosacral sprain/strain, and 12 bilateral carpal tunnel syndrome for which Dr. Bakshian recommended 13 bilateral carpal tunnel releases (A.R. 853).3 14 15 Plaintiff also received monthly pain management from July of 2015 16 through at least June of 2017 for reported neck pain with numbness 17 radiating to the right upper extremity, low back pain radiating to the 18 right lower extremity, right shoulder and hand pain, bilateral arm 19 pain, and related insomnia (A.R. 760-838, 866-909). 20 prescribed Flexeril, Norco, Gabapentin, at least one Toradol injection 21 and a cervical spine epidural steroid injection (id.). 22 underwent a cervical steroid injection on August 11, 2015, with 23 minimal improvement, she had some benefit from acupuncture and 24 physical therapy, but she had continuing postoperative pain with Plaintiff was Plaintiff also 25 26 27 28 3 The state agency physicians who reviewed the record did not have the benefit of Dr. Bakshian’s October, 2016 evaluation or the July, 2016 abnormal electrodiagnostic studies showing carpal tunnel syndrome. See A.R. 142-45. 7 1 numbness in the arms (A.R. 761). Plaintiff reported limited 2 activities of daily living throughout this period of time. 3 A.R. 761, 833, 867, 895. See, e.g., 4 5 At the administrative hearing on November 8, 2018, Plaintiff 6 similarly testified to only limited daily activities. She testified 7 that she lived in an apartment with her boyfriend, three dogs, one 8 turtle and two fish, and that she helped care for the pets (A.R. 85). 9 She did not have a car or a current driver’s license, but she could 10 take public transportation (A.R. 87-89). She said she could go 11 shopping, but her boyfriend handled most of the shopping (A.R. 89). 12 13 Plaintiff said she spent her days fielding phone calls and 14 updating calendars for her mother’s vacation rental business, which 15 she said took only five minutes per booking and involved no more than 16 four bookings a day (A.R. 98-99, 101). 17 able to sleep, she sleeps, and it takes her a while to get moving in 18 the morning (A.R. 104). 19 her mother, goes to doctor appointments, checks email on her phone, 20 has dinner (if she makes a meal she just opens prepared foods), and 21 she watches her dogs have their dinner before going to bed (A.R. 105- 22 07). Plaintiff said she often falls asleep during the day because she 23 is tired due to lack of sleep at night from the pain (A.R. 103). 24 Plaintiff said she does not lie down during the day and sleeps sitting 25 /// 26 /// 27 /// 28 /// Plaintiff said that, if she is Plaintiff said she eats breakfast, checks on 8 1 up to manage her neck pain (A.R. 98).4 2 3 Plaintiff testified that she previously had worked as an interior 4 designer, traveling notary, loan foreclosure processor and accounts 5 receivable clerk (A.R. 90-93). 6 because her work required her to carry things and her hands and back 7 prevent her from picking up things like a hammer, and because her neck 8 hurts if she looks up for too long (A.R. 93-95). 9 Plaintiff explained that she could lift no more than five pounds and Plaintiff said she stopped working As noted above, 10 could sit for five or ten minutes before having to change positions 11 due to pain (A.R. 95, 97). 12 bilateral carpal tunnel surgery, but that particular surgery had not 13 yet happened (A.R. 94). 14 spinal surgery, which makes holding her neck up (or down) 15 uncomfortable (A.R. 97-98). Plaintiff said she was supposed to have She said she still had pain in her neck post 16 17 Plaintiff said she no longer uses a computer because typing hurts 18 her hands, so she uses her phone with a stylus (A.R. 100). Plaintiff 19 said she could no longer work as a notary due to her hand and neck 20 problems (A.R. 100). 21 she would not have to use her hands frequently and could sit and stand 22 whenever she wanted (A.R. 100). Plaintiff said she “would try” to do a job where Plaintiff also said she “would try” a 23 4 24 25 26 27 28 In an undated Disability Report - Appeal form, Plaintiff reported that severe hand pain impairs her daily activities (e.g., she could not hold and use a hairbrush, she cannot open envelopes, it takes her a long time to complete simple tasks), severe hip pain limits her ability to stand, sit, walk or lie down for extended periods of time, sleeplessness interferes with her ability to think or focus, and she is unable to keep on top of household chores like laundry, cooking or managing household finances (A.R. 345). 9 1 job doing work like the work she does for her mother, notwithstanding 2 difficulty concentrating and staying awake and notwithstanding pain 3 from sitting and from lifting a phone to her ear (A.R. 102-03). 4 5 At the time of the hearing, Plaintiff said she was not taking any 6 diabetes medications because she could not afford them (her out of 7 pocket medication costs were $600 per month), and she was not seeking 8 out other treatment because her deductible was too high for the health 9 insurance she had through her father, and she only very recently had 10 found out she still had Medi-Cal (A.R. 96). Plaintiff had received an 11 accident settlement in June of 2018, but she said all that money had 12 gone for medical bills and back rent (A.R. 86). 13 14 II. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements 15 Regarding the Severity of Plaintiff’s Symptoms Without Stating 16 Legally Sufficient Reasons for Doing So. 17 18 Where, as here, an ALJ finds that a claimant’s medically 19 determinable impairments reasonably could be expected to cause some 20 degree of the alleged symptoms of which the claimant subjectively 21 complains, any discounting of the claimant’s complaints must be 22 supported by “specific, cogent” findings. 23 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 24 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 25 Cir. 1996) (indicating that ALJ must state “specific, clear and 26 convincing” reasons to reject a claimant’s testimony where there is no 27 /// 28 /// 10 See Berry v. Astrue, 622 1 evidence of malingering).5 2 suffice. 3 (the ALJ’s credibility findings “must be sufficiently specific to 4 allow a reviewing court to conclude the ALJ rejected the claimant’s 5 testimony on permissible grounds and did not arbitrarily discredit the 6 claimant’s testimony”) (internal citations and quotations omitted); 7 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 8 must “specifically identify the testimony [the ALJ] finds not to be 9 credible and must explain what evidence undermines the testimony”); 10 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 11 which symptom testimony is not credible and what facts in the record 12 lead to that conclusion.”); see also Social Security Ruling (“SSR”) 13 96-7p (explaining how to assess a claimant’s credibility), superseded, 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// Generalized, conclusory findings do not See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 20 21 22 23 24 25 26 27 28 5 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 11 1 SSR 16-3p (eff. March 28, 2016).6 2 3 In the present case, the ALJ discounted Plaintiff’s testimony 4 regarding the severity of her symptoms (A.R. 19-22). As reasons, the 5 ALJ stated: (1) Plaintiff’s activities of daily living assertedly 6 included maintaining her personal care, eating independently, going to 7 her appointments, “cooking” simple meals such as pre-cut salads, 8 checking her email on her cell phone, “putting dishes into the 9 washer,”7 and caring for her pets; (2) the medical records supposedly 10 show that Plaintiff received “conservative treat[ment] with 11 medications” and epidural steroid injections, and that she “only 12 needed conservative treatment even after her surgery”; and 13 (3) Plaintiff had not been compliant with her diabetic medications and 14 had “self-stopped her treatment,” assertedly suggesting her symptoms 15 were not as severe as reported (although the ALJ did not “base the 16 ultimate decision . . . on this factor alone”) (A.R. 19-22). 17 18 19 With regard to reason (1), inconsistencies between admitted daily activities and claimed incapacity properly may impugn the accuracy of 20 21 22 23 24 25 26 27 6 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent already required”). 7 28 Actually, Plaintiff testified she did not put dishes into the dishwasher (A.R. 107). 12 1 a claimant’s testimony and statements under certain circumstances. 2 See, e.g., Thune v. Astrue, 499 Fed. App’x 701, 703 (9th Cir. 2012) 3 (ALJ properly discredited pain allegations as contradicting claimant’s 4 testimony that she gardened, cleaned, cooked, and ran errands); 5 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 6 (claimant’s “normal activities of daily living, including cooking, 7 house cleaning, doing laundry, and helping her husband in managing 8 finances” provided sufficient explanation for discounting claimant’s 9 testimony). Yet, it is difficult to reconcile Ninth Circuit opinions 10 discussing when a claimant’s admitted activities may and may not 11 justify a discounting of the claimant’s testimony and statements. 12 Compare Stubbs-Danielson v. Astrue with Vertigan v. Halter, 260 F.3d 13 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a plaintiff has 14 carried on certain daily activities, such as grocery shopping, driving 15 a car, or limited walking for exercise, does not in any way detract 16 from her credibility as to her overall disability”); see also Diedrich 17 v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (daily activities 18 of cooking, cleaning, vacuuming, washing dishes, shopping and cleaning 19 a cat’s litter box insufficient to discount the claimant’s subjective 20 complaints). 21 22 In the present case, Plaintiff’s limited daily activities do not 23 necessarily contradict her subjective complaints. 24 reported helping her mother with her mother’s rental business, the 25 help Plaintiff provided was very minimal. 26 reported activities on which the ALJ expressly relied contradict her 27 claim that she could lift no more than five pounds. 28 activities do not undermine her subjective complaints. 13 Although Plaintiff None of Plaintiff’s Plaintiff’s daily See Revels v. 1 Berryhill, 874 F.3d 648, 667-68 (9th Cir. 2017). 2 3 With regard to reason (2), a limited course of treatment 4 sometimes can justify the rejection of a claimant’s testimony, at 5 least where the testimony concerns physical problems. 6 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of 7 consistent treatment, such as where there was a three to four month 8 gap in treatment, properly considered in discrediting claimant’s back 9 pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) See, e.g., 10 (in assessing the credibility of a claimant’s pain testimony, the 11 Administration properly may consider the claimant’s failure to request 12 treatment and failure to follow treatment advice) (citing Bunnell v. 13 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v. 14 Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility 15 factors in assessing pain testimony include limited treatment and 16 minimal use of medications); see also Johnson v. Shalala, 60 F.3d 17 1428, 1434 (9th Cir. 1995) (absence of treatment for back pain during 18 half of the alleged disability period, and evidence of only 19 “conservative treatment” when the claimant finally sought treatment, 20 sufficient to discount claimant’s testimony). 21 22 In the present case, however, it is doubtful Plaintiff’s 23 treatment with narcotic pain medications, epidural steroid injections, 24 and two surgeries with a third surgery recommended may properly be 25 characterized as “conservative” within the meaning of Ninth Circuit 26 jurisprudence. 27 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in the Ninth Circuit have 28 found that treatment was conservative when the claimant’s pain was See, e.g., Shepard v. Colvin, 2015 WL 9490094, at *7 14 1 adequately treated with over-the-counter medication and other minimal 2 treatment,” however where record reflected heavy reliance on Tramadol 3 and Oxycodone and other prescriptions for pain, record did not support 4 finding that treatment was “conservative”) (internal citations 5 omitted; citing for comparison Lapeirre-Gutt v. Astrue, 382 Fed. 6 App’x. 662, 664 (9th Cir. 2010) (doubting whether “copious amounts of 7 narcotic pain medication” as well as nerve blocks and trigger point 8 injections was “conservative” treatment)); Childress v. Colvin, 2014 9 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t is not obvious 10 whether the consistent use of [Norco] (for several years) is 11 ‘conservative’ or in conflict with Plaintiff’s pain testimony”); 12 Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) 13 (“It would be difficult to fault Plaintiff for overly conservative 14 treatment when he has been prescribed strong narcotic pain 15 medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. 16 Sept. 16, 2011) (refusing to characterize as “conservative” treatment 17 that included narcotic pain medication and epidural injections). 18 Indeed, Defendant admits that Plaintiff’s “conservative treatment” for 19 her neck ultimately failed and she had to have surgery. 20 Statement, p. 17. 21 treatment throughout much of the alleged disability period, taking 22 prescription narcotic pain medications and undergoing physical 23 therapy, chiropractic treatment, acupuncture, pain injections and neck 24 and shoulder surgeries. See Joint As detailed above, Plaintiff regularly sought 25 26 With regard to reason (3), noncompliance with prescribed or 27 recommended treatment sometimes can properly suggest that a claimant’s 28 symptoms have not been as severe as the claimant has asserted. 15 See 1 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (unexplained or 2 inadequately explained failure to follow prescribed course of 3 treatment can cast doubt on claimant’s credibility ); see also Molina 4 v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“We have long held 5 that, in assessing a claimant’s credibility the ALJ may properly rely 6 on unexplained or inadequately explained failure. . . to follow a 7 prescribed course of treatment”) (citations and quotations omitted); 8 SSR 16-3p (“if the individual fails to follow prescribed treatment 9 that might improve symptoms, we may find that the alleged intensity 10 and persistence of an individual’s symptoms are inconsistent with the 11 overall evidence of record”); Rouse v. Berryhill, 2017 WL 4404402, at 12 *16 (D.S.C. July 6, 2017), rejected on other grounds, 2017 WL 4348560 13 (D.S.C. Sept. 29, 2017) (court upheld ALJ’s discounting of the 14 plaintiff’s testimony concerning back pain, stating, inter alia, 15 “while pain medication was prescribed, the plaintiff declined refills, 16 indicating her pain may not have been as severe as alleged”). 17 18 In the present case, however, Plaintiff explained that she had 19 not been compliant with her diabetic medications and had stopped 20 treatment because she could not afford to pay for either (A.R. 96). 21 Plaintiff also said she had been under the mistaken impression that 22 her accident settlement had rendered her ineligible for Medi-Cal (A.R. 23 96). 24 stated reasons for recently having stopped her treatment (A.R. 19-22). In the ALJ’s decision, the ALJ did not acknowledge Plaintiff’s 25 26 It is sometimes improper for an ALJ to fault a claimant for 27 noncompliance with recommended treatment if the claimant cannot pay 28 for treatment. See Regennitter v. Commissioner, 166 F.3d 1294, 1297 16 1 (9th Cir. 1999) (“we have proscribed the rejection of a claimant’s 2 complaints for lack of treatment when the record establishes that the 3 claimant could not afford it”) (citations and footnote omitted). 4 the present record, in light of Plaintiff’s explanations for her 5 noncompliance with treatment, such noncompliance may not properly 6 undermine Plaintiff’s credibility. 7 Plaintiff’s credibility on this basis, the ALJ should have addressed 8 Plaintiff’s explanations. 9 *2 (C.D. Cal. Apr. 27, 2010) (ALJ erred by relying on lack of On If the ALJ had wished to discount See Marquez v. Astrue, 2010 WL 1709204, at 10 treatment without expressly addressing claimant’s explanations); 11 Ostalaza v. Astrue, 2009 WL 3170089, at *7 (C.D. Cal. Sept. 30, 2009) 12 (same). 13 14 Defendant cites to a patient instruction page from a diabetes 15 management visit in July of 2016 – when Plaintiff was prescribed 16 glucose, Metformin, Glipizide and referred to endocrinology with a 17 note that she also needed insulin – stating, “Walmart medications for 18 diabetes cash price: $4, 30-day Supply.” 19 (citing A.R. 441, 445). 20 demonstrates that doctors had provided Plaintiff with inexpensive ways 21 of treating her diabetes, but Plaintiff chose not to pursue them 22 (id.). 23 does not conclusively establish that Plaintiff rejected a less 24 expensive way to treat her diabetes. 25 what the “medications” are that may be filled for $4 per month, or 26 indicate whether that price encompassed all of Plaintiff’s necessary 27 diabetic medications (A.R. 441, 445). 28 cite this evidence as part of the ALJ’s stated reasoning. See Joint Stipulation, p. 18 Defendant suggests that such evidence Contrary to Defendant’s suggestion, the patient instruction 17 The instruction does not specify In any event, the ALJ did not The Court 1 cannot affirm the ALJ’s decision on a ground that the ALJ did not 2 state in the decision. 3 Cir. 2001) (court “cannot affirm the decision of an agency on a ground 4 that the agency did not invoke in making its decision”); Gonzalez v. 5 Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (“We are wary of 6 speculating about the basis of the ALJ’s conclusion. . . .”); see also 7 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (Ninth Circuit 8 reversed the district court’s decision where the district court had 9 affirmed on the basis of reasons supported by the record but unstated 10 See Pinto v. Massanari, 249 F.3d 840, 847 (9th by the ALJ). 11 12 The Court is unable to conclude that the ALJ’s failure to state 13 legally sufficient reasons for discounting Plaintiff’s subjective 14 complaints was harmless. 15 inconsequential to the ultimate non-disability determination.” 16 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and 17 quotations omitted). 18 if a person were further limited to lifting and carrying 10 pounds 19 occasionally and five pounds frequently, there would be no work that 20 person could perform (A.R. 112). “[A]n ALJ’s error is harmless where it is Molina Here, the vocational expert testified that, 21 22 III. Remand for Further Administrative Proceedings is Appropriate. 23 24 Remand is appropriate because the circumstances of this case 25 suggest that further development of the record and further 26 administrative review could remedy the ALJ’s errors. 27 Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 28 537 U.S. 12, 16 (2002) (upon reversal of an administrative 18 See McLeod v. 1 determination, the proper course is remand for additional agency 2 investigation or explanation, except in rare circumstances); Leon v. 3 Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (reversal with a 4 directive for the immediate calculation of benefits is a “rare and 5 prophylactic exception to the well-established ordinary remand rule”); 6 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the 7 district court concludes that further administrative proceedings would 8 serve no useful purpose, it may not remand with a direction to provide 9 benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 10 Cir. 2014) (remand for further administrative proceedings is the 11 proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 12 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) 13 (remand for further proceedings rather than for the immediate payment 14 of benefits is appropriate where there are “sufficient unanswered 15 questions in the record”); Connett v. Barnhart, 340 F.3d 871, 876 (9th 16 Cir. 2003) (“Connett”) (remand is an option where the ALJ fails to 17 state sufficient reasons for rejecting a claimant’s excess symptom 18 testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) 19 (citing Connett for the proposition that “[w]hen an ALJ’s reasons for 20 rejecting the claimant’s testimony are legally insufficient and it is 21 clear from the record that the ALJ would be required to determine the 22 claimant disabled if he had credited the claimant’s testimony, we 23 remand for a calculation of benefits”) (quotations omitted); see also 24 Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015) 25 (discussing the narrow circumstances in which a court will order a 26 benefits calculation rather than further proceedings); Ghanim v. 27 Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (remanding for further 28 proceedings where the ALJ failed to state sufficient reasons for 19 1 deeming a claimant’s testimony not credible); Vasquez v. Astrue, 572 2 F.3d 586, 600-01 (9th Cir. 2009) (a court need not “credit as true” 3 improperly rejected claimant testimony where there are outstanding 4 issues that must be resolved before a proper disability determination 5 can be made). 6 present record. There remain significant unanswered questions in the 7 8 CONCLUSION 9 10 For all of the foregoing reasons,8 the decision of the 11 Commissioner of the Social Security Administration is reversed in part 12 and this matter is remanded for further administrative action 13 consistent with this Opinion. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: December 4, 2020. 18 19 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 8 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 20
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