Bobbie A. Tyler v. Michael J. Astrue, No. 5:2011cv00441 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BOBBIE A. TYLER, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 11-0441 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On March 18, 2011, plaintiff Bobbie A. Tyler ( Plaintiff ) filed a complaint 22 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 23 Security Administration, seeking review of a denial of supplemental security income 24 benefits ( SSI ). [Docket No. 3.] On September 19, 2011, Defendant filed his answer, along with a certified 25 26 copy of the administrative record. [Docket Nos. 12, 13, 14.] In sum, having carefully studied, inter alia, the parties joint stipulation and 27 28 the administrative record, the Court concludes that, as detailed below, the 1 Administrative Law Judge ( ALJ ) improperly discounted Plaintiff s subjective 2 complaints. The Court thus remands this matter to the Commissioner in accordance 3 with the principles and instructions enunciated in this Memorandum Opinion and 4 Order. 5 II. 6 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 7 Plaintiff, who was 49 years old on the date of her most recent administrative 8 hearing, has completed the eighth grade. (See Administrative Record ( AR ) at 100, 9 498, 506.) 10 On November 28, 2005, Plaintiff filed for SSI, alleging that she has been 11 disabled since May 15, 1990 due to headaches, heel spurs, a dislocated hip joint, a 12 pinched nerve in her neck, asthma, and high blood pressure. (See AR at 83, 90, 13 100.) 14 On November 29, 2007, Plaintiff, represented by counsel, appeared and 15 testified at a hearing before an ALJ. (AR at 473-97.) The ALJ also heard testimony 16 from Stephen M. Berry, a vocational expert ( VE ). (Id.; see id. at 51.) 17 On January 30, 2008, the ALJ denied Plaintiff s request for benefits. (AR at 18 51-63.) 19 Plaintiff appealed and, on February 25, 2010, the Appeals Council vacated the 20 decision and remanded the case to the ALJ for further proceedings. (See AR at 4421 46.) 22 On July 19, 2010, Plaintiff, represented by counsel, appeared and testified at a 23 subsequent hearing before an ALJ. (AR at 498-536.) The ALJ also heard testimony 24 from Samuel Landau, M.D., a medical expert ( ME ), and Sandra Fioretti, a VE. 25 (Id.) 26 On September 9, 2010, the ALJ denied Plaintiff s request for benefits. (AR at 27 9, 12-22.) Applying the familiar five-step sequential evaluation process, the ALJ 28 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 2 1 her application date. (Id. at 14.) 2 At step two, the ALJ found that Plaintiff suffers from a severe impairments of 3 morbid obesity; possible asthma; degenerative disc disease of the neck and back; 4 and arthritis of the knees and hips. (AR at 14 (bold omitted).) 5 At step three, the ALJ determined that the evidence does not demonstrate that 6 Plaintiff s impairments, either individually or in combination, meet or medically 7 equal the severity of any listing set forth in the Social Security regulations.1/ (AR at 8 16.) The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 9 10 determined that she can perform light work except: 11 she can stand and/or walk for 15 to 30 minutes at a time and can 12 carry on this way for 2 hours out of an 8-hour period. She can sit 13 without restriction with normal breaks. She can lift and/or carry 14 10 pounds frequently and 20 pounds occasionally. She requires 15 the use of a cane as needed with a provision to elevate the legs up 16 to 6 inches off the floor as needed. She can occasionally stoop 17 and bend. She can climb stairs but not ladders. Nor can she 18 work at heights or balance. She cannot squat, kneel, crawl, run 19 or jump. She is limited to occasional operation of foot controls 20 or pedals. Her work environment should be air conditioned and 21 free of excessive inhaled pollutants. 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007). 3 1 (AR at 16 (bold omitted).) 2 The ALJ found, at step four, that Plaintiff has no past relevant work. (AR at 3 21.) 4 At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 5 that there are jobs that exist in significant numbers in the national economy that 6 [Plaintiff] can perform, including small products assembler I, small products 7 assembler II, and bench assembler. (AR at 21-22 (bold omitted).) Thus, the ALJ 8 concluded that Plaintiff was not suffering from a disability as defined by the Act. 9 (Id. at 13, 22.) 10 Plaintiff filed a timely request for review of the ALJ s decision, which was 11 denied by the Appeals Council. (AR at 3-5, 6.) The ALJ s decision stands as the 12 final decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This Court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. ยง 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 19 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 20 are based on legal error or are not supported by substantial evidence in the record, 21 the court may reject the findings and set aside the decision to deny benefits. 22 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 23 242 F.3d 1144, 1147 (9th Cir. 2001). 24 Substantial evidence is more than a mere scintilla, but less than a 25 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 26 evidence which a reasonable person might accept as adequate to support a 27 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 28 at 459. To determine whether substantial evidence supports the ALJ s finding, the 4 1 reviewing court must review the administrative record as a whole, weighing both 2 the evidence that supports and the evidence that detracts from the ALJ s 3 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 4 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 5 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 6 evidence can reasonably support either affirming or reversing the ALJ s decision, 7 the reviewing court may not substitute its judgment for that of the ALJ. Id. 8 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 9 IV. 10 ISSUES PRESENTED 11 Three disputed issues are presented for decision here: 12 1. whether the ALJ properly evaluated the medical evidence, (see Joint 13 Stip. at 4-10); 14 2. whether the ALJ properly assessed Plaintiff s credibility, (id. at 15-22); 3. whether the ALJ properly identified a significant number of 15 and 16 17 occupations which Plaintiff can perform. (Id. at 24-26.) 18 Under the circumstances here, the Court finds the issue of the ALJ s 19 evaluation of Plaintiff s credibility to be dispositive of this matter, and does not 20 reach the remaining issues. 21 V. 22 DISCUSSION AND ANALYSIS 23 A. Plaintiff s Credibility 24 Plaintiff argues that the ALJ has manufactured what he states are 25 inconsistencies between the evidence and Plaintiff s statements in his decision. 26 (Joint Stip. at 16.) Plaintiff maintains that [i]n fact, there are very few if any such 27 inconsistencies . (Id.) 28 / / / 5 1 1. Discounting Plaintiff s Credibility 2 3 The ALJ Must Provide Clear and Convincing Reasons For An ALJ can reject a plaintiff s subjective complaint upon (1) finding evidence 4 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton 5 v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider the 6 following factors in weighing a plaintiff s credibility: (1) his or her reputation for 7 truthfulness; (2) inconsistencies either in the plaintiff s testimony or between the 8 plaintiff s testimony and his or her conduct; (3) his or her daily activities; (4) his or 9 her work record; and (5) testimony from physicians and third parties concerning the 10 nature, severity, and effect of the symptoms of which she complains. Thomas v. 11 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 12 Here, the ALJ did not find evidence of malingering. (See generally AR at 12- 13 22.) Therefore, the ALJ s reasons for rejecting Plaintiff s credibility must rest on 14 clear and convincing reasons. See Benton, 331 F.3d at 1040. 15 16 2. The ALJ Improperly Rejected Plaintiff s Subjective Complaints The Court finds that the ALJ s reasons for discounting Plaintiff s credibility 17 are not clear and convincing and/or are not supported by the record. 18 First, the ALJ rejected Plaintiff s credibility based on inconsistencies between 19 Plaintiff s testimony and the record, and inconsistencies in her statements. The ALJ 20 found inconsistencies in statements regarding problems with [Plaintiff s] hands, 21 her ability to manage funds, her daily activities, and her possession of a driver s 22 license. (See AR at 17.) The ALJ s reasons are not supported by substantial 23 evidence. For instance, the ALJ reported that there is no evidence in the record of 24 any hand problem. (Id. (emphasis added).) However, on November 19, 2006, 25 treatment notes indicated left hand and arm pain with swelling, a problem Plaintiff 26 reported she has had . . . for awhile. (Id. at 236.; see also id. at 160-61 (treatment 27 note, dated on or about August 23, 2008, indicating mild swelling to hands and 28 joint pain in knuckles [and] index fingers ), 346 (treatment note, dated January 13, 6 1 2005, noting pain in left arm and left hand), 381(treatment note, dated July 23, 2008, 2 indicating swollen fingers ), 383 (treatment note, dated August 23, 2008, indicating 3 hands tingling, swollen ), 392 (treatment note, dated October 27, 2008, diagnosing 4 osteoarthritis of hands ).) 5 Further, the ALJ noted Plaintiff testified that she took care of all bills and 6 told the psychiatric consultative examination that she pays bills and can manage 7 funds; but, quite incredibly, she testified that she could not write out a check. (AR 8 at 17 (citation omitted).) However, Plaintiff s statements regarding her ability to 9 manage her own funds has been consistent. In an Adult Function Report form, she 10 indicated that she pays bills, and can count[] change, but does not handle a 11 savings account or use a checkbook. (Id. at 127, 130.) Similarly, during a 12 complete psychiatric evaluation, conducted on March 30, 2006, Plaintiff reported 13 that she can handle bills. (Id. at 284, 286.) During the administrative hearing, 14 Plaintiff testified that she knew how to pay bills [w]ith a money order, (id. at 522), 15 but cannot pay bills with a checkbook because she does not know how to fill a 16 check out. (Id. at 519; see also id. at 519-22.) Given that Plaintiff also testified she 17 has an eighth grade education and that she was in [s]pecial ed classes the whole 18 time she was in school, (id. at 512), the Court fails to find her inability to write out 19 a check incredible. 20 With respect to Plaintiff s daily activities, the Court, unlike the ALJ, does not 21 necessarily perceive a meaningful contradiction between Plaintiff s statement that 22 her son does all the cooking but then [she] admitted she did some cleaning. (AR 23 at 17.) At the hearing, Plaintiff testified that her son cooks, (id. at 523), unless she is 24 by [her]self . . . [then she will] use the microwave, . . . like a TV dinner or 25 something like that or make a sandwich. (Id. at 518, 523; see also id. at 127-129 26 (Adult Function Report, completed by Plaintiff, stating that she sometimes 27 prepares frozen dinners or sandwiches).) Plaintiff then stated that she does a little 28 bit of house cleaning, such as wash the bathroom down or wash a few dishes. 7 1 (Id. at 525.) Accordingly, Plaintiff s statements appear to explain the division of 2 labor in her household and clarify the activities she performs on a regular basis, but 3 do not necessarily demonstrate an inconsistency, as the ALJ suggested. 4 Similarly, the ALJ discounted Plaintiff s subjective complaints because she 5 has a current driver s license but said that she does not drive; yet she is able to 6 manage transportation. (AR at 17.) Again, the Court fails to find an incongruity 7 here. Plaintiff testified that she does not really care for driving because of her 8 mind, difficulty with traffic, and lack of ability to pay attention to where [she is] 9 going. (Id. at 520.) Plaintiff s testimony is consistent with the record i.e., on 10 June 22, 2008, the consultative psychiatrist indicated that Plaintiff was driven to the 11 office today. (Id. at 181; see also id. at 284-86 (consultative examination, dated 12 March 30, 2006, indicating Plaintiff gets rides from others, but she has a current 13 California driver license ).) 14 In any event, the ALJ fails to demonstrate how Plaintiff s ability to perform 15 certain daily activities translates into an ability to work. See Gonzalez v. Sullivan, 16 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ errs in failing to make a finding to the 17 effect that ability to perform daily activities translated into the ability to perform 18 appropriate work); Reddick, 157 F.3d at 722 (only if a plaintiff s level of activity is 19 inconsistent with her alleged limitations will these activities have any bearing on 20 claimant s credibility); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 21 2001) ( This court has repeatedly asserted that the mere fact that a plaintiff has 22 carried on certain daily activities, such as grocery shopping, driving a car, or limited 23 walking for exercise, does not in any way detract from her credibility as to her 24 overall disability. ). 25 Second, the ALJ erred to the extent he rejected Plaintiff s credibility based on 26 a lack of objective medical evidence. Plaintiff provided sufficient medical evidence 27 of underlying impairments that were reasonably likely to cause the symptoms she 28 described. For instance: 8 1 1. Adult clinical assessment note, dated August 30, 2004, reported 2 Plaintiff had current health problems of hypertension, asthma, and headaches. 3 (AR at 337.) 4 2. Treating physician progress note, dated June 10, 2005, indicated a 5 diagnosis of bronchial asthma. (AR at 344.) 6 3. A treatment note, dated February 5, 2008, indicated Plaintiff s history 7 of asthma. (AR at 169.) 8 4. A treatment note, dated February 24, 2008, stated that Plaintiff was 9 seen by chiropractor to work on her neck pain. (AR at 167.) 10 5. A treatment note, dated August 23, 2008, reported a history of 11 migraines and asthma. (AR at 161.) 12 6. A treatment note, dated July 2, 2009, noted neck and shoulder pain and 13 Plaintiff s request to have her asthma checked. (AR at 443.) 14 Third, while the ALJ properly found Plaintiff s statements regarding her 15 ability to concentrate inconsistent with the record, (compare AR at 181-87, 284-88 16 with id. at 18, 261-67, 517), the Court remains unconvinced that the ALJ s decision 17 remains legally valid, despite the errors in the credibility analysis. Carmickle v. 18 Comm r , 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining that the relevant inquiry 19 . . . is whether the ALJ s decision remains legally valid, despite errors in the 20 credibility analysis). 21 VI. 22 REMAND IS APPROPRIATE 23 This Court has discretion to remand or reverse and award benefits. McAllister 24 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 25 useful purpose would be served by further proceedings, or where the record has been 26 fully developed, it is appropriate to exercise this discretion to direct an immediate 27 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 28 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 9 1 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 2 resolved before a determination can be made, and it is not clear from the record that 3 the ALJ would be required to find plaintiff disabled if all the evidence were properly 4 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 5 F.3d at 1179-80. 6 Here, there are outstanding issues which must be resolved before a final 7 determination can be made. On remand, the ALJ shall reconsider Plaintiff s 8 subjective complaints and the resulting functional limitations, and either credit 9 Plaintiff s testimony or provide clear and convincing reasons supported by 10 substantial evidence for rejecting them. In addition, the ALJ shall reassess the 11 medical opinions in the record and provide sufficient reasons under the applicable 12 legal standard for rejecting any portion of the medical opinions. If necessary, the 13 ALJ shall obtain additional information and clarification regarding Plaintiff s 14 functional limitations. The ALJ shall then proceed through steps four and five to 15 determine what work, if any, Plaintiff is capable of performing.3/ Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 16 17 REVERSING the decision of the Commissioner denying benefits and 18 REMANDING the matter for further administrative action consistent with this 19 decision. 20 21 Dated: December 6, 2011 22 ____________________________________ 23 24 Hon. Jay C. Gandhi 25 United States Magistrate Judge 26 27 3/ In light of the Court s remand instructions, it is unnecessary for the Court to 28 address Plaintiff s remaining contentions. (See Joint Stip. at 4-10, 24-26.) 10
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