Keiki Conway v. Michael J. Astrue, No. 5:2010cv00411 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Marc L. Goldman. The case is remanded for further proceedings consistent with this opinion and order. (nbo)
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Keiki Conway v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 KEIKI CONWAY, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-00411-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Keiki Conway seeks judicial review of the Commissioner’s 19 final decision denying her application for Social Security Disability 20 Insurance benefits (“DIB”). For the reasons set forth below, the 21 decision of the Social Security Commissioner is reversed, and the matter 22 is remanded for further proceedings consistent with this opinion. 23 24 I. Background 25 Plaintiff was born on September 1, 1958. (Administrative Record 26 (“AR”) 104.) She graduated from high school and completed one year of 27 college. (AR 131.) Plaintiff has worked as a bus driver, postal clerk 28 and sales representative (AR 127.) Dockets.Justia.com 1 Plaintiff filed an application for disability benefits on February 2 12, 2008, alleging that she had been disabled since November 15, 2007 3 due to discogenic and degenerative back impairments. (AR 43, 104-108.) 4 Plaintiff’s application was denied initially on June 18, 2008, and upon 5 reconsideration on July 14, 2008. (AR 44-48, 50-54.) An administrative 6 hearing was held on October 19, 2009, before Administrative Law Judge 7 (“ALJ”) F. Keith Varni. Plaintiff, represented by counsel, testified at 8 the hearing, as did vocational expert David Rhinehart. (AR 23-39.) 9 On November 24, 2009, ALJ Varni denied Plaintiff’s application for 10 benefits. (AR 9-16.) The ALJ found that Plaintiff had not engaged in 11 substantial gainful activity during the period at issue, except for a 12 period from January 1, 2008 through February 29, 2008. (AR 11.) The ALJ 13 further found that the medical evidence established that Plaintiff 14 suffered 15 stenosis, status post thoracic laminectomy, right ankle sprain/strain, 16 status post operative ligamentous repair, and obesity. (Id.) However, 17 the ALJ concluded that Plaintiff’s impairments did not meet, or were not 18 medically equal to, one of the listed impairments in 20 C.F.R., Part 19 404, Subpart P, Appendix 1. (Id.) The ALJ next found that Plaintiff 20 retained the residual functional capacity (“RFC”) to: from the following severe impairments: thoracic spinal 21 perform light work as defined in 20 C.F.R. 404.1567(b) and 22 SSR 83-10 except the claimant [can] lift and/or carry 20 23 pounds occasionally and 10 pounds frequently; she can 24 and/or walk two hours in an 8-hour workday; she can sit 6 25 hours in an 8-hour workday; she no [sic] push and/or pull 26 limitations, other than as shown for lifting and/or carrying; 27 and she is limited to occasional climbing and walking on 28 uneven ground. 2 stand 1 (AR 12.) The ALJ determined that Plaintiff was able to perform her past 2 relevant work as a mobile lounge driver. (AR 15.) The ALJ concluded that 3 Plaintiff was not disabled within the meaning of the Social Security 4 Act. See 20 C.F.R. § 416.920(f). 5 On January 22, 2010, the Appeals Council denied review (AR 1-3) 6 and Plaintiff timely commenced this action for judicial review. On 7 September 28, 2010, the parties filed a Joint Stipulation (“Joint 8 Stp.”) of disputed facts and issues. Plaintiff contends that the ALJ 9 erred by: (1) failing to properly develop the record and (2) failing 10 to give clear and convincing reasons for discounting Plaintiff’s 11 credibility. 12 Commissioner’s denial of her application and payment of benefits or, 13 in the alternative, remand for a new administrative hearing. (Joint 14 Stp. 18.) The Commissioner contends that the ALJ’s decision should be 15 affirmed. (Joint Stp. 19.) (Joint Stp. 2.) Plaintiff seeks a reversal of the 16 After reviewing the parties’ respective contentions and the record 17 as a whole, the Court finds that the ALJ failed to make a legally sound 18 credibility determination. Accordingly, this matter shall be remanded 19 for further proceedings consistent with this opinion.1 20 21 II. Standard of Review Under 22 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. The Commissioner’s or ALJ’s 24 decision must be upheld unless “the ALJ’s findings are based on legal 25 26 27 28 1 Plaintiff also contends that the ALJ erred by failing to develop the record regarding a leg fracture Plaintiff suffered the week before the administrative hearing. (Joint Stp. 3.) If Plaintiff believes that this injury has an impact on her disability status, she may seek to amend her DIB application or file a new one. 3 1 error or are not supported by substantial evidence in the record as a 2 whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra 3 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 4 means such evidence as a reasonable person might accept as adequate to 5 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 6 Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more 7 than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. 8 Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether 9 substantial evidence supports a finding, the reviewing court “must 10 review the administrative record as a whole, weighing both the evidence 11 that supports and the evidence that detracts from the Commissioner’s 12 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). “If 13 the evidence can support either affirming or reversing the ALJ’s 14 conclusion,” the reviewing court “may not substitute its judgment for 15 that of the ALJ.” Robbins, 466 F.3d at 882. 16 17 III. Discussion 18 Plaintiff contends the ALJ erred by failing to provide clear and 19 convincing reasons for discounting Plaintiff’s subjective symptom 20 testimony. (Joint Stp. at 35.) To determine whether a claimant’s 21 testimony about subjective pain or symptoms is credible, an ALJ must 22 engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 23 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 24 (9th Cir. 2007)). First, the ALJ must determine whether the claimant 25 has presented objective medical evidence of an underlying impairment 26 which could reasonably be expected to produce the alleged pain or other 27 symptoms. Lingenfelter, 504 F.3d at 1036. “[O]nce the claimant produces 28 objective medical evidence of an underlying impairment, an adjudicator 4 1 may not reject a claimant’s subjective complaints based solely on a 2 lack of objective medical evidence to fully corroborate the alleged 3 severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 4 1991) 5 functional 6 reasonably consistent with the objective medical evidence and other 7 evidence in the case, the claimant’s allegations will be credited. SSR 8 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 9 416.929(c)(4)).2 (en banc). To limitations the and extent that an restrictions individual’s due to claims alleged pain of is 10 Unless there is affirmative evidence showing that the claimant is 11 malingering, the ALJ must provide specific, clear and convincing 12 reasons for discrediting a claimant’s complaints. Robbins, 466 F.3d at 13 883. “General findings are insufficient; rather, the ALJ must identify 14 what testimony is not credible and what evidence undermines the 15 claimant’s complaints.” Reddick, 157 F.3d at 722 (quoting Lester v. 16 Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The ALJ must consider a 17 claimant’s work record, observations of medical providers and third 18 parties with knowledge of claimant’s limitations, aggravating factors, 19 functional restrictions caused by symptoms, effects of medication, and 20 the claimant’s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283- 21 84 & n.8 (9th Cir. 1996). The ALJ may also consider an unexplained 22 failure to seek treatment or follow a prescribed course of treatment 23 and employ other ordinary techniques of credibility evaluation. Id. 24 (citations omitted). 25 26 27 28 2 “The Secretary issues Social Security Rulings to clarify the Secretary’s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary’s interpretation of its regulations.” Bunnell, 947 F.2d at 346 n.3. 5 1 Plaintiff testified at the administrative hearing that she cannot 2 sit for more than 15 minutes, cannot stand for more than 30 minutes, 3 cannot walk farther than her mailbox and cannot lift a gallon of milk 4 unless leaning on something. (AR 28, 31, 34.) She further testified that 5 she has been falling frequently and had actually fallen the week before 6 the October 29, 2009 administrative hearing, sustaining a “spiral 7 fracture” of her leg. (AR 29.) She also testified that she usually uses 8 a cane to walk, which was prescribed for her after foot surgery in March 9 2008. (AR 28.) 10 The ALJ found that Plaintiff’s medical impairments could reasonably 11 be expected to produce the alleged symptoms. (AR 13.) The ALJ was 12 therefore required to provide specific, clear and convincing reasons for 13 rejecting Plaintiff’s subjective allegations of pain and functional 14 limitations. Here however, the ALJ did not provide any specific reasons 15 for rejecting Plaintiff’s testimony, but rather merely stated that “the 16 objective medical evidence does not support the alleged severity of 17 symptoms or more restrictive functional limitations,” without specifying 18 what medical evidence in the record contradicts Plaintiff’s subjective 19 complaints. (AR 15.) See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 20 2005) (noting that “lack of medical evidence cannot form the sole basis 21 for discounting pain testimony”). 22 In support of the argument that the ALJ properly addressed 23 Plaintiff’s subjective complaints, the Commissioner points to other 24 evidence in the record which allegedly discredits Plaintiff’s subjective 25 statements. (Joint Stp. 16-17.) For example, the Commissioner notes that 26 Plaintiff alleged a disability onset date of November 15, 2007, but 27 continued to work as a sales representative through February 2008 and 28 sought employment as late as June 6 2008. (Joint Stp. 16.) The 1 Commissioner also contends that Plaintiff was not credible because she 2 accepted unemployment benefits, which implies an ability to work. (Id.) 3 However, even assuming that these are sufficient reasons for the ALJ to 4 reject Plaintiff’s subjective complaints, the ALJ did not cite this 5 evidence 6 Commissioner himself concedes. (Joint Stp. 16-17.) It would be error for 7 this Court to affirm the ALJ’s decision based upon reasons that the ALJ 8 did not discuss. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). in support of his credibility determination, as the 9 10 IV. Conclusion 11 The decision whether to remand for further proceedings is within 12 this Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 13 Cir. 14 administrative 15 developed, it is appropriate to exercise this discretion to direct an 16 immediate award of benefits. Id. at 1179 (“[T]he decision of whether to 17 remand for further proceedings turns upon the likely utility of such 18 proceedings.”); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 19 However, where there are outstanding issues that must be resolved before 20 a determination of disability can be made, and it is not clear from the 21 record that the ALJ would be required to find the claimant disabled if 22 all 23 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also 24 Connett, 25 credibility determination). 2000). the Where useful proceedings, evidence 340 no F.3d were at purpose or properly 876 where would the evaluated, (remanding case be served record remand for has is by further been fully appropriate. reconsideration of 26 Here, the ALJ failed to explain with sufficient specificity the 27 basis for his determination that Plaintiff was not fully credible 28 regarding the intensity, persistence, and limiting effects of her 7 1 symptoms. Accordingly, the case is remanded for further proceedings 2 consistent with this opinion and order. 3 4 DATED: October 1, 2010 5 6 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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