Rosa Cardenas Salvas v. Andrew Saul, No. 2:2020cv05217 - Document 19 (C.D. Cal. 2021)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this case for further proceedings in accordance with this Memorandum Opinion and Order and with law. (es)

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Rosa Cardenas Salvas v. Andrew Saul Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 ROSA CARDENAS SALVAS, Plaintiff, 13 14 v. ANDREW M. SAUL, 15 Commissioner of Social Security, 16 17 18 19 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 20-05217-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On June 11, 2020, Rosa Cardenas Salvas (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 21 denying Plaintiff’s applications for Social Security Disability Insurance benefits and 22 Supplemental Security Income benefits. (Dkt. 1.) The Commissioner filed an Answer on 23 October 9, 2020. (Dkt. 15.) On December 18, 2020, the parties filed a Joint Stipulation (“JS”). 24 (Dkt. 18.) The matter is now ready for decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed bef ore this 26 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 27 the Court concludes that the Commissioner’s decision must be reversed and this action 28 remanded for further proceedings in accordance with this Memorandum Opinion and Order. Dockets.Justia.com 1 BACKGROUND 2 Plaintiff is a 57 year-old female who applied for Social Security Disability Insurance 3 benefits and Supplemental Security Income benefits on October 24, 2016, alleging disability 4 beginning February 26, 2015. (AR 21.) The ALJ determined that Plaintiff has not engaged in 1 5 substantial gainful activity since February 26, 2015, the amended alleged onset date. (AR 24.) Plaintiff’s claims were denied initially on February 9, 2017, and on reconsideration on 6 7 May 18, 2017. (AR 21.) Plaintiff filed a timely request for hearing on June 21, 2017. (AR 21.) 8 On May 20, 2019, Administrative Law Judge (“ALJ”) Barry Robinson held a video hearing from 9 Dallas, Texas. (AR 21.) Plaintiff appeared and testified via telephone in Los Angeles with the 10 assistance of a Spanish interpreter and was represented by counsel. (AR 21.) Vocational 11 expert (“VE”) Stephanie Malone also appeared at the hearing via telephone. (AR 21.) The ALJ issued an unfavorable decision on July 9, 2019. (AR 21-29.) The Appeals 12 13 Council denied review on May 1, 2020. (AR 1-8.) DISPUTED ISSUES 14 As reflected in the Joint Stipulation, Plaintiff only raises the following disputed issue as 15 16 ground for reversal and remand: 1. 17 Whether the ALJ properly considered Plaintiff’s subjective symptom testimony. STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 19 20 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 21 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorm e v. Sullivan, 924 F.2d 841, 846 22 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 23 based on the proper legal standards). 24 25 26 27 28 1 At the hearing on May 20, 2019, the Claimant amended her alleged onset date to February 26, 2015, due to the decision of an Administrative Law Judge in a previous claim, which adjudicated the period ending February 25, 2015. (AR 22.) The ALJ references the presumption of continuing nondisability (AR 22), but neither the Commissioner nor the Plaintiff addresses or discusses the issue in the Joint Statement. The Court, therefore, will not address it either. 2 1 Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 3 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 5 401 (internal quotation marks and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). W here 8 evidence is susceptible to more than one rational interpretation, the ALJ’s decision m ust be 9 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 10 “However, a reviewing court must consider the entire record as a whole and may not affirm 11 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 12 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v . Astrue, 495 13 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 14 15 The Social Security Act defines disability as the “inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of not 18 less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five19 step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 20 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 23 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 24 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 25 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 26 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 27 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 28 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 3 1 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 2 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 3 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 4 2001). Before making the step four determination, the ALJ first must determine the claimant’s 5 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 6 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 7 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). T he RFC must consider all of the 8 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 9 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 10 If the claimant cannot perform his or her past relevant work or has no past relevant work, 11 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 12 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 13 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 14 consistent with the general rule that at all times the burden is on the claimant to establish his or 15 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 16 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 17 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). T o support 18 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 19 demonstrating that other work exists in significant numbers in the national economy that the 20 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 21 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 22 entitled to benefits. Id. THE ALJ DECISION 23 24 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 25 not engaged in substantial gainful activity since February 26, 2015, the amended alleged onset 26 date. (AR 24.) 27 At step two, the ALJ determined that Plaintiff has the following medically determinable 28 severe impairment: degenerative disc disease of the spine with arthritis. (AR 25.) 4 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of the listed 3 impairments. (AR 25.) 4 The ALJ then found that Plaintiff had the RFC to perform medium work as defined in 20 5 CFR §§ 404.1567(c) and 416.967(c) with the following limitations: 6 Claimant can frequently climb ladders but never climb ropes or scaffolds. She 7 can frequently stoop, kneel, and crawl; and occasionally balance. 8 (AR 25-28.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 9 subjective symptom allegations were “not entirely consistent” with the medical evidence and 10 other evidence of record. (AR 26.) 11 At step four, the ALJ found that Plaintiff is able to perform past relevant work as a 12 cleaner, housekeeping, and hotel clerk. (AR 28.) 13 Consequently, the ALJ found that Claimant is not disabled within the meaning of the 14 Social Security Act. (AR 28-29.) DISCUSSION 15 16 The ALJ decision must be reversed. The ALJ’s rejection of Plaintiff’s subjective 17 symptom allegations is not supported by substantial evidence. The ALJ’s RFC is not supported 18 by substantial evidence. 19 A. Relevant Federal Law 20 The ALJ’s RFC is not a medical determination but an administrative finding or legal 21 decision reserved to the Commissioner based on consideration of all the relevant evidence, 22 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 23 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 24 in the record, including medical records, lay evidence, and the effects of symptoms, including 25 pain reasonably attributable to the medical condition. Robbins, 466 F.3d at 883. 26 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 27 on whether the claimant produces medical evidence of an impairment that reasonably could be 28 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 5 1 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Sm olen, 80 2 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 3 severity of symptoms merely because they are unsupported by objective medical evidence. 4 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s pain 5 testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 6 Bunnell, 947 F.2d at 345. The ALJ must set forth “findings sufficiently specific to permit the 7 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also Rollins v . Massanari, 261 F.3d 853, 857 9 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is ev idence of malingering, the ALJ 10 can reject the claimant’s testimony about the severity of a claimant’s symptoms only by offering 11 “specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1283-84; see also 12 Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not credible and what 13 evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 14 B. Analysis 15 Plaintiff Rosa Cardenas Salvas testified that she has back pain which radiates to her 16 right and left legs as well as her left arm and shoulder. (AR 26.) She also claimed she has 17 difficulty bending, carrying and lifting due to her back pain. (AR 26.) The ALJ did find that 18 Plaintiff has the medically determinable severe impairments of degenerative disc disease of the 19 spine with arthritis. (AR 25.) Notwithstanding these impairments, the ALJ assessed Plaintiff 20 with a reduced range medium work RFC. (AR 25-26.) The ALJ determined Plaintiff could 21 perform her past relevant work as a cleaner, housekeeping and hotel clerk. (AR 28.) 22 Consequently, the ALJ concluded that Plaintiff was not disabled from the alleged onset date of 23 February 26, 2015 through the date of the ALJ decision on July 9, 2019. (AR 28-29.) 24 In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically determinable 25 impairments reasonably could be expected to cause the alleged symptoms. (AR 26.) The ALJ, 26 however, also found that Plaintiff’s statements regarding the intensity, persistence, and limiting 27 effects of these symptoms are “not entirely consistent” with the medical evidence and other 28 evidence of record. (AR 26.) Because the ALJ did not make any finding of malingering, he 6 1 was required to provide clear and convincing reasons supported by substantial evidence for 2 discounting Plaintiff’s subjective symptom allegations. Smolen, 80 F.3d at 1283-84; 3 Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 200 8). The ALJ failed to do so. 4 First, the ALJ found that Plaintiff’s subjective allegations were inconsistent with the 5 objective medical evidence. (AR 26-28.) An ALJ is permitted to consider whether there is a 6 lack of medical evidence to corroborate a claimant’s alleged symptoms so long as it is not the 7 only reason for discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 8 (9th Cir. 2005) Plaintiff’s lumbar spine had reduced range of motion and tenderness to 9 palpation on exam. (AR 26, 27.) She had limited right hip flexion due to lumbar spine pain, 10 and had a positive straight leg test. (AR 26.) Her other exams, however, showed she had 11 normal sensation, 5/5 motor strength, and normal reflexes. (AR 26, 27.) She consistently had 12 a normal gait without the use of an assistive device. (AR 27.) Medical imaging showed Plaintiff 13 had mild disc desiccation. (AR 27.) On some physical examinations, she had full range of 14 motion with no tenderness, spasm, or pain. (AR 27.) On examination she was able to squat, 15 toe walk, and heel walk. (AR 27.) The examiner further noted that Plaintiff had full strength 16 and full range of motion in her bilateral and lower extremities. (AR 27.) Two State agency 17 medical consultants assessed Plaintiff with medium work RFCs. (AR 27.) The ALJ found 18 these assessments consistent with the diagnostic testing showing only mild degenerative 19 changes. (AR 27.) A consulting orthopedist, Dr. Richard Pollis, opined that Plaintiff could 20 perform light work. (AR 27.) The ALJ found this opinion consistent with the evidence of record 21 showing grossly normal musculoskeletal exam findings. (AR 27.) The RFC difference is 22 immaterial because the ALJ found Plaintiff’s past relevant work was light. (AR 28.) Plaintiff 23 does not contest the ALJ’s summary of the medical evidence.2 24 25 2 26 27 28 Also in the medical evidence of record is the opinion of Dr. Rebecca Berlin that Plaintiff could perform only sedentary work with additional exertional, postural, and absenteeism limitations.(AR 28.) The ALJ gave little weight to this opinion because it was inconsistent with the medical evidence of record and too reliant on Plaintiff’s subjective report of symptoms. Plaintiff does not challenge the ALJ’s rejection of Dr. Berlin’s opinion. 7 1 Second, the ALJ noted that, despite alleging an inability to work beginning February 2 2015, Plaintiff worked in 2016. (AR 24, 263.) The work did not rise to disqualifying work at 3 step one but nonetheless showed that Plaintiff was capable of more work activity than she 4 alleged for that time period. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 5 (9th Cir. 2009) (claimant testimony discounted because worked as a caregiver and sought out 6 other employment). Plaintiff attempts to dismiss this evidence because the discussion 7 occurred with respect to the step 2 finding and not in the context of an evaluation of Plaintiff’s 8 testimony. (JS 16.) The Ninth Circuit, however, does not require that evidence be discussed in 9 any particular section of the ALJ decision. Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001); 10 see also Kruchek v. Barnhart, 125 F. App’x 825, 827 (9th Cir. 2005) (adequately analyzed 11 evidence elsewhere in decision); Harris v. Astrue, 2009 WL 801347, at *7 (N.D. Cal. Mar. 25, 12 2009) (discussion and evaluation of evidence at step four supported ALJ’s step three 13 conclusion; “Lewis does not require that support for the ALJ’s conclusions be placed in a 14 specific section of the report”). Nonetheless, the work occurred only in 2016 and it did not rise 15 to substantial gainful activity. (AR 24.) This factor has no applicability to the remainder of the 16 period in issue (2017-2019) and cannot constitute a clear and conv incing reason for rejecting 17 Plaintiff’s subjective symptoms for that latter period. 18 Third, the ALJ found that Plaintiff’s activities of daily living were inconsistent with her 19 subjective symptom allegations (AR 26, 27, 28), which is a legitimate consideration in 20 evaluating those allegations. Bunnell, 947 F.2d at 345-46. Here, Plaintif f testified that she can 21 sit for six hours in an eight hour workday and can stand and walk for about 15 minutes at a 22 time. (AR 27.) Although Plaintiff reported difficulties with walking, bending, standing, and stair 23 climbing, the ALJ found she could perform some cooking and cleaning despite her pain and 24 could carry small objects within her home. (AR 27, 26.) These minimal activities, however, are 25 not sufficient to constitute substantial evidence to support the ALJ’s rejection of Plaintiff’s 26 subjective symptom pain testimony. Indeed, every claimant would be found to have engaged 27 in daily activities inconsistent with disability if evidence this weak were all that was required. 28 The Court recognizes that it is the ALJ’s responsibility to resolve conflicts in the evidence and 8 1 ambiguities in the record. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). W here the 2 ALJ’s interpretation of the record is reasonable, it should not be second-guessed. Rollins v. 3 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, however, the ALJ’s assessment of the 4 record is not reasonable. The ALJ’s third reason for discounting Plaintiff’s subjective symptom 5 allegations does not constitute a clear and convincing reason for doing so. 6 Consequently, the ALJ failed to present clear and convincing reasons supported by 7 substantial evidence for rejecting Plaintiff’s subjective symptoms. The Commissioner only has 8 inconsistency with the medical evidence as a valid, clear, and convincing reason for 9 discounting Plaintiff’s subjective symptom allegations. That is not sufficient. Burch, 400 F.3d 10 at 680-81. *** 11 The ALJ’s RFC is not supported by substantial evidence. 12 *** 13 14 The ALJ’s nondisability determination is not supported by substantial evidence or free of 15 legal error. 16 ORDER 17 IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the 18 Commissioner of Social Security and remanding this case for further proceedings in 19 accordance with this Memorandum Opinion and Order and with law. 20 21 DATED: February 10, 2021 22 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 9

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