M. Angelica Conejo v. Michael J. Astrue, No. 5:2010cv00706 - Document 36 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this matter is remanded for further administrative action consistent with this Opinion. (See Order for complete details) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 M. ANGELICA CONEJO, Plaintiff, 13 14 15 16 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 18 ) NO. ED CV 10-706-AS ) ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 19 20 PROCEEDINGS 21 22 23 24 25 26 27 28 On May 27, 2010, Plaintiff filed a Complaint seeking review of the Commissioner's denial of Plaintiff s application for disability benefits and supplemental security income ( SSI ). No. 4). (Docket Entry On April 14, 2011, pursuant to the parties stipulated remand, the Court remanded this case for further administrative proceedings, and retained jurisdiction pursuant to sentence six of 42 U.S.C. § 405(g). (Docket No. 15). 1 After the proceedings on 1 remand resulted in a decision unfavorable to Plaintiff, on May 2, 2 2013, the parties stipulated to reopen the matter (Docket Entry No. 3 16), and the Court ordered the case reopened (Docket Entry No. 17). 4 5 On August 9, 2013, Defendant 6 Administrative Record ( A.R. ). filed an Answer and (Docket Entry Nos. 19, 20). the On 7 August 21, 2013, the matter was transferred and referred to the 8 current Magistrate Judge. (Docket Entry No. 21). The parties have 9 consented to proceed before a United States Magistrate Judge. 10 (Docket Entry Nos. 23-24). On January 14, 2014, the parties filed 11 a Joint Stipulation ( Joint Stip. ) setting forth their respective 12 positions regarding Plaintiff's claims. (Docket Entry No. 25). On 13 August 25, 2014, pursuant to the Court s request, Defendant 14 supplemented the Administrative Record. 16 argument. (Docket Entry Nos. 34, 15 35). The Court has taken this matter under submission without oral 17 June 2, 2010. 18 21 22 23 24 25 26 27 28 (Docket Entry No. 2). BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 19 20 See C.D. Local R. 7-15; Case Management Order, filed Plaintiff, a former sales clerk-cashier (A.R. 250), asserts disability beginning January 1, 2004, based on alleged physical and mental impairments. Michael D. (Id. 10, 132). Radensky ( ALJ ), The Administrative Law Judge, examined the record and heard testimony from Plaintiff and vocational expert ( VE ), David A. Rinehart, on January 3, 2012. (Id. 245, 258-95). On January 18, 2012, the ALJ issued a decision denying 2 1 Plaintiff's application for benefits. (Id. 245-51). The ALJ found 2 that Plaintiff has the severe combination of impairments of 3 obesity, fibromyalgia, and depression. (Id. 248). The ALJ also 4 determined that Plaintiff s medically determinable impairments of 5 depression and obesity were nonsevere as they did not cause more 6 than minimal limitation in her ability to perform basic mental work 7 activities. (Id. 246, 248). The ALJ determined that, 8 notwithstanding these impairments, Plaintiff assertedly retains 9 the residual functional capacity ( RFC ) to perform the full range 10 of light work and that she is able to perform her past relevant 11 work as a sales clerk-cashier. 12 13 14 15 Accordingly, the ALJ found that Plaintiff was not disabled at any time from the alleged disability onset date through the date of the ALJ's decision. 16 18 20 21 22 23 Plaintiff contends that the ALJ erred: (1) in his assessment of Plaintiff s credibility; (2) in failing to properly evaluate Plaintiff s impairment; and (3) by violating the Appeals Council s remand order. incorporating by (Joint Stip. 3-4). STANDARD OF REVIEW 25 26 28 mental reference a prior decision vacated by the Appeals Council, thereby 24 27 (Id. 250). PLAINTIFF S CONTENTIONS 17 19 (Id. 249-50). This Court reviews the Commissioner s decision to determine if: (1) the Commissioner s findings are supported by substantial 3 1 evidence; and (2) the Commissioner used proper legal standards. 42 2 U.S.C. § 405(g); see Carmickle v. Comm r, 533 F.3d 1155, 1159 (9th 3 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 4 Substantial evidence is more than a scintilla, but less than a 5 preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 6 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 7 1997). It is relevant evidence which a reasonable person might 8 accept as adequate to support a conclusion. Hoopai, 499 F.3d at 9 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). To 10 determine whether substantial evidence supports a finding, a court 11 must consider the record as a whole, weighing both evidence that 12 supports and evidence that detracts from the [Commissioner s] 13 conclusion. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 14 1997) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 16 can constitute substantial evidence). 15 1066 (9th Cir. 2006) (inferences reasonably drawn from the record 17 18 19 20 21 22 23 24 25 26 27 28 This Court may not affirm [the Commissioner s] decision simply by isolating a specific quantum of supporting evidence, but must also consider evidence that detracts from [the Commissioner s] conclusion. Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) (citation and internal quotation marks omitted); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (same). However, the Court cannot disturb findings supported by substantial evidence, even though there may exist other evidence supporting Plaintiff s claim. If See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973). the reversing evidence the can reasonably [Commissioner s] support conclusion, 4 either [a] affirming court may or not 1 substitute its judgment for that of the [Commissioner]. Reddick, 2 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). 3 4 5 6 APPLICABLE LAW The Social Security Act defines disability as the inability 7 to engage in any substantial gainful activity by reason of any 8 medically determinable physical or mental impairment which can be 9 expected to result in death or which has lasted or can be expected 10 to last for a continuous period of not less than 12 months. Webb 11 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. 12 § 423 (d)(1)(A)). The ALJ follows a five-step, sequential analysis 13 to determine whether a claimant has established disability. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 C.F.R. § 404.1520. At step one, the ALJ determines whether the claimant is engaged in substantial 404.1520(a)(4)(i). gainful employment activity. Id. § Substantial gainful activity is defined as work that . . . [i]nvolves doing significant and productive physical or mental duties[] and . . . [i]s done (or intended) for pay or profit. Id. §§ 404.1510, 404.1572. If the ALJ determines that the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two which requires the ALJ to determine whether the claimant has a medically severe impairment or combination of impairments that significantly limits his ability to do basic work activities. Webb, 433 F.3d at 686. See id. § 404.1520(a)(4)(ii); see also The ability to do basic work activities is defined as the abilities and aptitudes necessary to do most 5 1 jobs. 20 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. An 2 impairment is not severe if it is merely a slight abnormality (or 3 combination of slight abnormalities) that has no more than a 4 minimal effect on the ability to do basic work activities. Webb, 5 433 F.3d at 686. 6 If the ALJ concludes that a claimant lacks a medically severe 7 8 impairment, the ALJ must find the claimant not disabled. Id.; 20 9 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th 10 Cir. 2005) (ALJ need not consider subsequent steps if there is a 11 finding of disabled or not disabled at any step). 12 13 However, if the ALJ finds that a claimant s impairment is 14 severe, then step three requires the ALJ to evaluate whether the 16 entitling him to a disability finding. 18 entitling the claimant to a disability finding, the ALJ must 15 claimant s impairment satisfies certain statutory requirements 17 the 19 20 21 22 23 24 25 26 27 28 impairment does not satisfy Webb, 433 F.3d at 686. the statutory If requirements determine the claimant s RFC, that is, the ability to do physical and mental work activities on a sustained basis despite limitations from all his impairments. 20 C.F.R. § 416.920(e). Once the RFC is determined, the ALJ proceeds to step four to assess whether the claimant is able to do any work that he or she has done in the past, defined as work performed in the last fifteen years prior to the disability onset date. If the ALJ finds that the claimant is not able to do the type of work that he or she has done in the past or does not have any past relevant work, the ALJ 6 1 proceeds to step five to determine whether taking into account 2 the claimant s age, education, work experience and RFC there is 3 any other work that the claimant can do and if so, whether there 4 are a significant number of such jobs in the national economy. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 6 404.1520(a)(4)(iii)-(v). The claimant has the burden of proof at 7 steps one through four, and the Commissioner has the burden of 8 proof at step five. Tackett, 180 F.3d at 1098. 9 10 DISCUSSION 11 12 After consideration of the record as a whole, the Court finds 13 that the Commissioner s findings are not supported by substantial 14 evidence or free from material1 legal error. For the reasons 15 discussed below, the case is remanded under sentence four of 42 16 U.S.C. Section 405(g). 17 18 A. The ALJ Materially Erred in Evaluating Plaintiff s Credibility 20 Plaintiff asserts that the ALJ erred in assessing Plaintiff s 19 21 credibility because he failed to utilize the techniques outlined 22 by the Ninth Circuit for determining credibility, made statements 23 that are inconsistent with the medical record, and failed to 24 provide specific, clear, and convincing reasons for challenging 26 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ s decision will not be reversed for errors that are harmless). 7 25 27 28 1 1 Plaintiff s credibility. (Joint Stip. 5-7). Plaintiff also 2 contends that the ALJ limited his analysis to Plaintiff s 3 purported ability to walk, her poor effort on one consultative 4 grip test, her failure to fully describe the intensity of her 5 fatigue to her physicians, and inferred that she was malingering. 6 (Id. 11). 7 8 The ALJ noted Plaintiff s testimony as follows: 9 10 [S]he testified . . . that she had to lay down and 11 nap four to six times a day on a regular basis for a half 13 also complained of being unable to sleep at night because 15 she stressed that her medication made her sleepy and how 17 basis for epidural injections as well as other shots in 19 reportedly admitted substantial improvement of her pain 21 with 23 medication side effects. 25 testimony does reflect complaints of pain all over her 27 limitations alleged. 12 to two hours at a time because of her pain although she 14 the medication for sleep no longer helped her. 16 she was seeing a pain management specialist on a monthly 18 the areas where she has pain. 20 with each injection as well as reporting relief of pain 22 Robaxin, and there was no indication of any complaints of 24 of record like her prehearing statements and hearing 26 body, but the record does not support the degree of 28 her medication, which However, [¶] . . . The claimant included Vicoprofen and [¶] . . . The medical evidence She has said that her family does everything for her, but it is clear that she was overly 8 1 dramatic at the hearing, and in fact livened up a bit 2 when talking about things she liked. 3 She admitted that she drove her daughter to school sometimes and helped 4 with homework, but otherwise maintained that her husband 5 and son took care of everything for her. 6 7 (A.R. 250). 8 9 Where, as here, the ALJ finds that a claimant suffers from a 10 medically determinable impairment that could reasonably be expected 11 to produce his or her alleged symptoms, the ALJ must evaluate the 12 intensity, persistence, and functionally limiting effects of the 13 individual s symptoms . . . to determine the extent to which the 14 symptoms affect 15 activities. the individual s ability to do basic work This requires the [ALJ] to make a finding about the 16 credibility of the individual s statements about the symptom(s) and 17 its functional effect. 18 Soc. Sec. Ruling ( SSR ) 96-7p. An ALJ s assessment of a claimant s credibility is entitled to 19 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 20 great weight. 21 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 22 The ALJ may not discount the claimant s testimony regarding the 23 severity of the symptoms without making specific, cogent 24 findings. 26 (reaffirming same); but see Smolen, 80 F.3d at 1283-84 (indicating 25 also 27 that ALJ must provide specific, clear and convincing reasons to 28 Berry Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) reject a claimant s testimony where there is no evidence of 9 1 malingering); see Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 2 1990).2 Generalized, conclusory findings do not suffice. See 3 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ s 4 credibility findings must be sufficiently specific to allow a 5 reviewing court to conclude the [ALJ] rejected [the] claimant s 6 testimony on permissible grounds and did not arbitrarily discredit 7 the claimant s testimony ) (citation and internal quotation marks 8 omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) 9 (the ALJ must specifically identify the testimony [the ALJ] finds 10 not to be credible and must explain what evidence undermines the 11 testimony ); Smolen, 80 F.3d at 1284 ( The ALJ must state 12 specifically which symptom testimony is not credible and what facts 13 in the record lead to that conclusion. ); see also SSR 96-7p. 14 15 An ALJ may consider a range of factors in assessing 16 credibility, including (1) ordinary techniques of credibility 17 evaluation, such as the claimant's reputation for lying, prior 18 inconsistent statements concerning the symptoms, and other 19 testimony by the claimant that appears less than candid; (2) 20 unexplained or inadequately explained failure to seek treatment or 21 to follow a prescribed course of treatment; and (3) the claimant's 22 23 24 25 26 27 28 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Comm r, 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Comm r, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). As set forth infra, the ALJ s findings in this case are insufficient under either standard, so the distinction between the two standards (if any) is academic. 10 2 1 daily activities. Ghanim v. Colvin, --- F.3d ----, 2014 WL 2 4056530, at *7 (9th Cir. Aug. 18, 2014) (quoting Smolen, 80 F.3d at 3 1284; accord Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007)). 4 5 Here, the ALJ, after considering the record and the testimony 6 presented at the hearing, found Plaintiff s statements concerning 7 the intensity, persistence and limiting effects of her symptoms 8 not credible to the extent they are inconsistent with the ALJ s 9 RFC. (A.R. 249). 10 11 Contrary to her testimony, the medical records 12 reflect good response to medication, and there is no 14 or sitting, but rather repeated reports of no apparent 16 than some tenderness over her spine without any muscle 18 motion. Her medications are consistent with only mild to 20 response to medication without medication side effects, 22 need for naps of up to two hours at a time. 13 clinical evidence of any problems with standing, walking 15 distress and no problems with walking or anything more 17 spasm, sensory or motor changes, or limitation of spinal 19 moderate pain, there are repeated references to good 21 and there is certainly no mention of the alleged frequent 23 24 25 26 27 28 (Id. 250). Thus, the ALJ discounted Plaintiff s credibility for the following reasons: (1) the objective medical evidence does not fully support either the degree of limitation, or the degree of 11 1 pain and fatigue alleged by Plaintiff; (2) there were internal 2 inconsistencies in Plaintiff s complaints; and (3) treatment and 3 conservative medications provide relief. 4 5 The Court finds that the ALJ 1. (Id.). failed to state Objective Medical Evidence 6 sufficient reasons for his adverse credibility finding. legally 7 8 9 10 Although a claimant s credibility cannot be rejected on the 11 sole ground that it is not fully corroborated by objective medical 12 evidence, the medical evidence is still a relevant factor . . . 13 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Lack of 14 supporting objective medical evidence is a key consideration for 15 the ALJ in evaluating credibility. See 20 C.F.R. §§ 16 404.1529(c)(4), 416.929(c)(4) (in determining disability, an ALJ 17 must evaluate a claimant s statements about the intensity, 18 persistence and limiting effects of her symptoms in relation to 19 the objective medical evidence and other evidence ). 20 21 Here, the ALJ discounted Plaintiff s credibility based in part 22 on a finding that the objective medical evidence does not fully 23 support the degree of limitation alleged by Plaintiff. (Id. 250). 24 The ALJ noted that there is no clinical evidence of any problems 26 distress and no problems with walking or anything more than some 25 standing, walking, or sitting, and repeated reports of no apparent 27 tenderness over her spine without any spasm, sensory or motor 28 changes, or limitation of spinal motion. 12 (Id.). He also found 1 that the medical records do not reflect the degree of pain and 2 fatigue alleged by Plaintiff. (Id.). 3 4 The ALJ and Defendant also point out that (1) the reports of 5 Plaintiff s treating physician, Dr. Loomba, reflect normal range of 6 motion, normal muscle strength, normal sensation, and negative 7 straight leg raising tests (A.R. 250; Joint Stip. 8 (citing A.R. 8 405, 407, 410, 413, 417)); (2) the internal medicine consultative 9 examiner and the orthopedic examiner both opined that Plaintiff 10 could work with some limitations, finding only mild objective 11 findings (Joint Stip. 8 (citing A.R. 146-50, 390-94)); (3) the 12 consultative examiners also noted no problem with walking and/or 13 sitting (id. (citing A.R. 148, 263-64, 391)); and (4) Plaintiff s 14 physicians generally reported no difficulties in walking (id. 3 15 (citing A.R. 168, 173, 178, 181, 185). 16 17 A review of the record, however, reveals that the ALJ s 18 findings only reflect part of the record. For instance, a November 19 17, 2011, note from an urgent care visit for a headache, seems to 20 possibly indicate that Plaintiff s heel walking and toe walking 21 were abnormal. (A.R. 449). Dr. Loomba also consistently mentioned 22 that on examination of Plaintiff s back and neck, Plaintiff had 23 tenderness in cervical paraspinal muscles, and tenderness in 24 25 lumbar paraspinal muscles, increased pain with flexion of the 3 The Court s review of the record reveals that only one of 26 the cited documents actually mentions an assessment of Plaintiff s (See, e.g., A.R. 168 ( Gait And Stance: 27 gait and stance. Normal. )). The other pages that are cited do not mention walking 28 at all. (See, e.g., A.R. 173, 178, 181, 185). 13 1 spine, [and] increased pain with extension of the spine. (Id. 2 405, 407, 410, 413, 417; see also id. 420, 422, 424, 428, 432, 436, 3 438, 440). The Court finds itself ill equipped to determine which, 4 if any, of Dr. Loomba s clinical findings are or are not 5 significant in light of Plaintiff s impairments. Indeed, in the 6 context of fibromyalgia the Ninth Circuit has recognized that 7 objective findings often do not establish the presence or absence 8 of [the disease]. Jordan v. Northrop Grumman Corp., 370 F.3d 869, 9 872 (9th Cir. 2003), overruled on other grounds by Abatie v. Alta 10 Health & Life Ins., 458 F.3d 955, 970 (9th Cir. 2006) (en banc). 11 In Jordan, 12 administered the court recognized that to rule out diseases other objective and tests are alternative 13 explanations for the pain, but do not themselves establish the 14 presence or absence of fibromyalgia, as that condition cannot be 15 objectively proven. 16 17 Id. at 877. The ALJ also found that the record does not support the degree 18 of fatigue alleged by Plaintiff as there was no mention in the 19 medical record of Plaintiff s frequent need for naps. (A.R. 250). 20 A review of Dr. Loomba s records, however, shows that Plaintiff 21 complained of fatigue at every visit. (See, e.g., id. 404, 406, 22 409, 412, 416, 417, 419, 421, 427, 429, 437). More importantly, 23 the records reflect that after treating Plaintiff for almost six 24 months, Dr. Loomba prescribed Provigil in October 2009. (Id. 433). 25 According to its official website, Provigil is used to improve 27 Provigil Website, http://www.provigil.com (last visited August 22, 26 28 wakefulness in adults who experience excessive sleepiness . . . . 2014). It appears, therefore, that Dr. Loomba was aware of 14 1 Plaintiff s complaints of daytime fatigue and concerned enough 2 about these complaints to prescribe a medication to help Plaintiff 3 stay awake. 4 5 Thus, the ALJ s reliance on the objective medical evidence in 6 this case was not a clear and convincing reason for discounting 7 Plaintiff s credibility. Even if the ALJ s reliance on the 8 objective evidence was deemed to be a clear and convincing reason 9 for discounting Plaintiff s credibility, it cannot be the sole 10 legally sufficient reason. As discussed below, because the Court 11 finds that the other reasons given by the ALJ for discounting 12 Plaintiff s credibility are also not legally sufficient, the matter 13 must be remanded. 14 15 2. 17 The ALJ pointed to inconsistencies in Plaintiff s complaints 16 Inconsistent Statements 18 as a basis for discounting Plaintiff s credibility. For example, 19 although Plaintiff testified that because of her pain she had to 20 nap and/or rest four to six times a day for up to two hours at a 21 time, she also complained that she was unable to sleep at night 22 because her sleep medication no longer helped her. (A.R. 249; but 23 see id. 447 ( no sleep complaints ). Although she complained she 24 was unable to sleep at night because her sleep medication no longer 26 sleepy. 25 27 28 helped her, she also complained that her medication made her (Id. 249-50). Inconsistencies in a claimant s testimony are a valid factor 15 1 to be considered in weighing a claimant s credibility. Thomas v. 2 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Burch, 400 F.3d at 3 680 ( In determining credibility, an ALJ may engage in other 4 techniques of credibility evaluation, such as . . . inconsistencies 5 in claimant s testimony ); Tonapetyan v. Halter, 242 F.3d 1144, 6 1148 (9th Cir. 2001) (claimant s inconsistent statements were 7 specific and convincing reason for discounting the testimony); see 8 also 20 C.F.R. §§ 404.1529(c), 416.929(c). 9 10 In this case, however, Plaintiff s statements regarding 11 fatigue, frequent napping/resting during the day, and inability to 12 sleep well at night are not necessarily inconsistent: pain may 13 necessitate rest during the day, result in napping and, in turn, 14 result in difficulty sleeping at night either because of prior 15 daytime sleep, or because of pain interrupting sleep at night. 16 Additionally, as previously discussed (see Discussion supra Part 17 A.1), although Dr. Loomba s records do not specifically mention 18 Plaintiff s frequent naps/rests during the day, it is clear that 19 Dr. Loomba was aware of Plaintiff s daytime fatigue, and was 20 treating this symptom with medication. 21 Accordingly, the ALJ s reliance on Plaintiff s inconsistent 22 23 statements is not supported by the record and is not a clear and 24 convincing reason to discount Plaintiff s allegations. 26 /// 25 /// 27 /// 28 16 1 3. 2 Conservative Medication and Positive Response to Treatment 3 The ALJ noted that Plaintiff s medications were consistent 4 5 with only mild to moderate pain, her medications and other 6 treatment provided her pain relief, and there was no indication of 7 any complaints of medication side effects. (A.R. 250 (citing id. 8 404-41)). 9 However, a review of Dr. Loomba s records reveals that as of 10 11 July 2011 Plaintiff was taking three different prescribed pain 12 medications: Gabapentin, Robaxin, and Vicoprofen. (See, e.g., id. 13 404; see also id. 308). There is nothing in the record to support 14 the ALJ s perfunctory statement that these medications are 16 the fact that all three were being prescribed at the same time. 18 Plaintiff, Dr. Loomba not only adjusted Plaintiff s pain and 15 prescribed for only mild to moderate pain, especially in light of 17 Furthermore, 19 20 21 22 23 24 25 over sleep/wakefulness the course medications, of but the time also that she suggested treated additional treatment options of lumbar and cervical injections in order to help Plaintiff better manage her pain.4 (Id. 404-41). Although the ALJ reported that Plaintiff experienced relief from her medications and other treatments, there is no indication in the record that such relief was inconsistent with her testimony. 26 4 The only found the medication regimen to be 27 conservative ;ALJ does not appear to deem the spinal injections to he 28 be a conservative form of treatment. 17 1 On numerous visits to Dr. Loomba between June 15, 2009 and July 12, 2 2011, Plaintiff reported that her pain is relieved by medications, 3 rest, massage, heat and/or epidural injections, that the pain 4 medications are helping, and/or that after receiving injections in 5 September 2009, November 2009, September 2010, February 2011, and 6 March 2011, there was a decrease in pain, ranging between 30 and 7 80%. (See, e.g., id. at 404, 406, 409, 412, 416, 419, 421, 427, 8 431, 433, 435, 437). However, at each of her visits, Plaintiff 9 also fairly consistently rated her average pain between 7/10 and 10 10/10, and there is nothing to suggest that she was ever without 11 pain, even after receiving the injections. (Id.). Additionally, 12 Plaintiff continued to periodically receive these injections, which 13 suggests that any benefit from them was not long lasting. 14 15 Plaintiff also repeatedly informed Dr. Loomba that her pain 16 symptoms were aggravated by physical activity, including movement, 18 419, 421, 427, 429, 437). 17 19 20 21 22 23 24 25 26 27 28 sitting, standing, and walking. (Id. 404, 406, 409, 412, 416, 417, She consistently described her pain to Dr. Loomba as burning, dull aching, constant, sharp, shooting, and radiating, and sometimes with cramping or numbness. (Id.) These statements are consistent with her testimony at the hearing. (See, e.g., id. at 261-63). The ALJ discounted Plaintiff s credibility because she did not report any side effects from her medications. In assessing a claimant s credibility about her symptoms, an ALJ may consider the type, dosage, effectiveness, and side effects of any medication. 20 C.F.R. § 404.1529(c). However, in this case, there does not 18 1 appear to be any connection between the ALJ s finding that 2 Plaintiff takes her medication without any reported side effects, 3 and Plaintiff s credibility. 4 Thus, the Court finds that, when read as a whole, the record 5 6 in this case does not undermine Plaintiff s testimony of pain and 7 fatigue. Ghanim, 2014 WL 4056530, at *8. 8 consistently reveals that despite some Rather, the record occasional signs of 9 improvement, Plaintiff continues to suffer from, and be treated 10 for, pain, fatigue, and sleep disturbances. 11 that the ALJ s stated reasons for The Court also finds discounting Plaintiff s 12 credibility do not sufficiently allow the Court to conclude that 13 the ALJ discounted Plaintiff s credibility on legally permissible 14 grounds. 16 B. 15 17 18 19 20 21 22 23 24 Plaintiff s Mental Impairments Should Be Reconsidered on Remand The ALJ noted that, with respect to Plaintiff s mental impairment, Plaintiff has had little treatment for her varying complaints of anxiety and depression and that they responded quickly to medication. (A.R. 248 (citing id. 164, 167-68, 172, 177, 180, 184, 188, 190)).5 He found that although Plaintiff The Court s review of these documents reveals that some of For instance, one treatment note never mentions Plaintiff s medications and reflects only a routine visit for sinusitis (A.R. 177), and another reflects that Plaintiff reported insomnia, decreased interest, increased feelings of worthlessness, decreased energy, (continued...) 19 5 25 the cited pages do not fully support the ALJ s finding. 26 27 28 1 stated at the hearing that she is very depressed, she has not 2 received any formal mental health treatment and there is even less 3 evidence of depression and anxiety than at the time of the prior 4 decision in 2003. (Id.). Therefore, the ALJ concluded that 5 Plaintiff s mental impairment causes no more than mild limitation 6 in concentration, persistence, or pace, and that even in 7 conjunction with her medically determinable physical impairments, 8 is nonsevere and non limiting in terms of mental functioning. 9 (Id.). 10 Plaintiff contends that the ALJ erred in failing to properly 11 12 evaluate Plaintiff s mental impairment and that the ALJ s finding 13 that her depression was nonsevere is not supported by substantial 14 evidence. (Joint Stip. 12). In support of this contention, 16 identified as indicating diagnoses or assessments of depression and 18 disturbance. 15 Plaintiff cites to many of the same medical records that the ALJ 17 anxiety due to chronic muscle/joint pain, and accompanied by sleep 19 20 (Id. (citing A.R. 167, 168, 172, 180, 183, 184, 188, 189, 403, 410, 413, 417, 440)). Plaintiff also points out that she has been, and is being, treated for depression with medications.6 21 (...continued) 5 22 increased difficulty in concentrating, and anxiety attacks (id. 23 24 25 26 27 28 190). The record reflects that in 2007 a physician s assistant noted Plaintiff s complaints of depression, resulting in fatigue. (Id. 166-68, 172-88). Plaintiff was treated with Cymbalta, and reported that it helped her significantly. (Id. 172, 180, 184). Some of these same notes, however, also indicate that Plaintiff still feels very anxious, paranoid, and depressed (see, e.g., id. (continued...) 6 20 1 (Id.). 2 3 As this case is being remanded for the ALJ to reconsider 4 Plaintiff s credibility, which in turn may support Plaintiff s 5 complaints regarding her mental impairments, the Court does not 6 reach the merits of Plaintiff s claim that the ALJ erred in finding 7 Plaintiff s mental impairments to be nonsevere. The Court will 8 instead direct this issue to be reassessed on remand. 9 10 C. The ALJ s Incorporation of the Prior Decision Was Not Error 12 After this Court remanded the matter pursuant to the parties 14 remanded the matter for a new hearing, any further action to 16 decision, the ALJ noted that the prior decision issued April 8, 18 of record as supplemented herein below. 11 13 stipulation, the Appeals Council vacated the 2008 decision and 15 complete the record and a new decision. 17 2008 is incorporated by reference herein and remains the decision 19 20 21 (A.R. 316). In his 2012 (Id. 246). Plaintiff contends that the 2012 decision was inconsistent with the remand order because the ALJ did not make a new decision, 22 23 (...continued) 24 25 26 27 28 172, 180), and it appears that her Cymbalta dosage was increased as a result (id. 173). Dr. Loomba s records show that from July 2009 through August 2010 Plaintiff was taking Elavil and Fluoxetine (Prozac) (id. 437), and Plaintiff s December 2011 list of medications includes Prozac, but not Elavil, as a current On November 22, 2011, medication as of that date (id. 388). Plaintiff reported to treating physician, Dr. Lopa, that her mood was stable on Prozac. (Id. 445). 21 1 he merely reiterated the old decision. (Joint Stip. 17). The 2 Court does not agree. 3 After reviewing the record, the Court finds that, although the 4 5 ALJ referenced the previous decision and incorporated it by 6 reference, his decision was otherwise complete in and of itself at 7 every step of the evaluation process. (A.R. 245-51). The ALJ 8 included a complete discussion of the fact that there was little or 9 no change in the nature and severity of Plaintiff s medically 10 determinable impairments since 2003, including her obesity, which 11 had not been mentioned in the 2003 decision. (Id. 246). He also 12 considered and discussed the new medical evidence submitted for the 13 hearing as well as some of the earlier medical evidence. (Id. 24514 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51). Finally, the ALJ provided a thorough (albeit flawed) discussion of Plaintiff s credibility. Generally, it is not improper for an ALJ to incorporate a previous decision and supplement it with a subsequent decision. See, e.g., Walker v. Astrue, No. EDCV 08-971 DSF (FFM), 2010 WL 2305849, at *11 (C.D. Cal. June 4, 2010) (citing Mason v. Astrue, No. ED CV 08-240-E, 2008 WL 4382662, at *2 (C.D. Cal. Sept. 11, 2008)). Moreover, it would elevate form over substance to require an ALJ to actually copy the past findings, rather than incorporate them by reference, especially where, as here, the remand was due to an administrative issue involving a missing document and did not relate to any concerns regarding the substantive issues in the ALJ s 2008 decision. See, e.g., Alsyouf v. Astrue, No. EDCV 1122 1 1867-SS, 2013 WL 327794, at *12 (C.D. Cal. Jan. 29, 2013). 2 3 The Court finds that the ALJ did not err or violate the 4 Appeals Council s order by issuing a new decision, which happened 5 to incorporate the 2008 decision, after conducting a new hearing. 6 7 D. Remand Is Appropriate 9 The decision whether to remand for further proceedings or 8 10 order an immediate award of benefits is within the district court s 11 discretion. 12 2000). Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. Where no useful purpose would be served by further 13 administrative proceedings, or where the record has been fully 14 developed, it is appropriate to exercise this discretion to direct 16 whether to remand for further proceedings turns upon the likely 18 circumstances of the case suggest that further administrative 15 an immediate award of benefits. 17 utility of such proceedings. ). 19 20 21 22 23 24 25 26 27 28 Id. at 1179 ( [T]he decision of However, where, as here, the review could remedy the ALJ s errors, remand is appropriate. McLeod, 640 F.3d at 888 (9th Cir. 2011); Harman, 211 F.3d at 117981. The Court has determined that the ALJ s credibility findings were not sufficiently specific to allow this Court to conclude that the ALJ rejected Plaintiff s testimony on permissible grounds and did not arbitrarily discredit her testimony. After reassessing Plaintiff s credibility on remand, the ALJ should revisit the issue 23 1 of Plaintiff s mental impairment in light of his credibility 2 determination. 3 4 5 6 CONCLUSION For all of the foregoing reasons,7 this matter is remanded for 7 further administrative action consistent with this Opinion. 8 9 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: August 27, 2014. 12 /s/ 13 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 7 The Court has not reached any other issue raised by 26 Plaintiff except insofar as to determine that reversal with a 27 directive for the payment of benefits would not be appropriate at this time. 28 24

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