Deanna Griffin v. Michael J Astrue, No. 5:2011cv01680 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DEANNA GRIFFIN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-1680-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 24, 2011, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ), and supplemental security income ( SSI ). On December 22 19, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to 23 proceed before the undersigned United States Magistrate Judge. 24 parties filed a Joint Stipulation on July 16, 2012, in which: plaintiff 25 seeks an order reversing the Commissioner s decision and awarding 26 benefits 27 proceedings; and the Commissioner requests that his decision be affirmed 28 or, alternatively, remanded for further administrative proceedings. or, alternatively, remanding for further The administrative 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On May 7, 2007, plaintiff filed an application for a period of 4 disability, DIB, and SSI, alleging an inability to work since December 5 31, 1994, due to dislocation right shoulder/back injury/hyperextended 6 knee. 7 work 8 waitress, cocktail waitress, and bartender. (Administrative Record ( A.R. ) 11, 143.) experience as a telemarketer, customer Plaintiff has past service-clothing, (A.R. 17, 144.) 9 10 The Commissioner denied plaintiff s application initially and upon 11 reconsideration. (A.R. 65-69, 71-75.) On June 9, 2009, plaintiff, who 12 was represented by counsel, appeared and testified at a hearing before 13 Administrative Law Judge Jay E. Levine (the ALJ ). (A.R. 24-59.) David 14 Reinhart, a vocational expert, also testified. (Id.) 15 2009, the ALJ denied plaintiff s claim (A.R. 7-19), and the Appeals 16 Council subsequently denied plaintiff s request for review of the ALJ s 17 decision (A.R. 1-5). On November 12, That decision is now at issue in this action. 18 19 SUMMARY OF ADMINISTRATIVE DECISION 20 21 The ALJ found that plaintiff met the insured status requirements of 22 the Social Security Act through September 30, 2004, and that she had not 23 engaged in substantial gainful activity from her alleged onset date of 24 December 13, 1994, through the date of the decision. 25 ALJ further determined that plaintiff has the severe impairments of: 26 Meniere s 27 disease; chronic right shoulder dislocations; bipolar disorder; and 28 marijuana addiction. disease; degenerative (A.R. 13.) disc disease; (A.R. 10.) degenerative The joint The ALJ concluded that none of these 2 1 impairments meet or medically equal the criteria of an impairment listed 2 in 3 Impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of (Id.) 4 5 After reviewing the record, the ALJ determined that plaintiff has 6 the residual functional capacity ( RFC ) to perform sedentary work as 7 defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except she would be 8 limited as follows: 9 10 [N]o work around unprotected heights or dangerous machinery. 11 She would be limited to occasional climbing, stooping or 12 lifting above shoulder level with the left upper extremity; 13 and 14 conveyor belt work or piecework. no balancing, kneeling, crouching, crawling, and no 15 16 (A.R. 14.) 17 18 The ALJ found that plaintiff s past work as a telemarketer 19 constitutes past relevant work under the regulations and that she is 20 capable of performing it, both as that work is generally performed and 21 as she actually performed it. 22 considered plaintiff s age, education, work experience, and RFC, the ALJ 23 found that other jobs exist in the national economy that plaintiff could 24 perform, including telephone quotations clerk, pari-mutuel ticket 25 checker, and order clerk food and beverage. 26 determined that plaintiff s substance abuse was not a contributing 27 factor material to the determination of disability, because even in the 28 absence of her substance addiction, [the ALJ] would still not be able to (A.R. 18.) 3 Additionally, after having (Id.) The ALJ further 1 find [plaintiff] to be disabled. (A.R. 18-19.) Accordingly, the ALJ 2 concluded that plaintiff has not been under a disability, as defined in 3 the Social Security Act, since December 31, 1994, the alleged onset date 4 of her disability. (Id.) 5 6 STANDARD OF REVIEW 7 8 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 9 decision to determine whether it is free from legal error and supported Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 10 by substantial evidence. 11 2007). Substantial evidence is such relevant evidence as a reasonable 12 mind might accept as adequate to support a conclusion. 13 omitted). 14 necessarily a preponderance. 15 (9th Cir. 2003). 16 substantial evidence, only those reasonably drawn from the record will 17 suffice. 18 2006)(citation omitted). Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 While inferences from the record can constitute Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 19 20 Although this Court cannot substitute its discretion for that of 21 the Commissioner, the Court nonetheless must review the record as a 22 whole, weighing both the evidence that supports and the evidence that 23 detracts from the [Commissioner s] conclusion. 24 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 25 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 26 responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities. 28 1035, 1039 (9th Cir. 1995). 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 1 The Court will uphold the Commissioner s decision when the evidence 2 is susceptible to more than one rational interpretation. Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision and may not 5 affirm the ALJ on a ground upon which he did not rely. 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner s decision if it is based on harmless error, which 8 exists only when it is clear from the record that an ALJ s error was 9 inconsequential to the ultimate nondisability determination. Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 12 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff alleges the following three issues: (1) whether the ALJ 17 properly 18 plaintiff s mental impairment; (2) whether the ALJ properly considered 19 plaintiff s subjective complaints; and (3) whether the ALJ erred in 20 finding that plaintiff s prior employment as a telemarketer constituted 21 past relevant work ( PRW ). evaluated the medical evidence of record relevant to (Joint Stipulation ( Joint Stip. ) at 3.) 22 I. 23 The ALJ Failed To Properly Evaluate The Medical Evidence Concerning Plaintiff s Mental Impairment. 24 25 26 An ALJ is obligated to take into account all medical opinions of 27 record. 20 C.F.R. §§ 404.1527(d), 416.927(d). It is the responsibility 28 of the ALJ to analyze evidence and 5 resolve conflicts in medical 1 testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 2 the hierarchy of physician opinions considered in assessing a social 3 security claim, [g]enerally, a treating physician s opinion carries 4 more weight than an examining physician s, and an examining physician s 5 opinion carries more weight than a reviewing physician s. Holohan v. 6 Massanari, C.F.R. 7 404.1527(d), 416.927(d). 246 F.3d 1195, 1202 (9th Cir. 2001); 20 In §§ 8 9 The opinions of treating physicians are entitled to the greatest 10 weight, because a treating physician is hired to cure and has a better 11 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 12 a 13 physician s opinion, it may be rejected only for clear and convincing 14 reasons. 15 contradicted by another doctor s opinion, a treating physician s opinion 16 may be rejected only if the ALJ provides specific and legitimate 17 reasons supported by substantial evidence in the record. 18 must 19 uncontradicted opinion of either a treating or examining physician. Id. treating physician s opinion is not contradicted by another Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). provide clear and convincing reasons for Id. When An ALJ rejecting the 20 21 The medical treatment records before the ALJ concerning plaintiff s 22 mental impairment were from the Riverside County Department of Mental 23 Health ( Riverside County ), where plaintiff was treated from December 24 2008, through at least June 2009. 25 appears that plaintiff was seen monthly by her treating psychiatrist, 26 David Aryanpur, M.D., and by several different clinicians on a weekly 27 basis. (A.R. 499-519, 547-65, 567-83.) (Id.) 28 6 It 1 On December 31, 2008, Dr. Aryanpur noted that plaintiff was doing 2 a little better but was frustrated. (A.R. 516.) 3 plaintiff exhibited mood swings and slightly rambling speech, and 4 was on verge of tears. 5 December 28, 2008, and he recommended that plaintiff abstain from drugs, 6 especially marijuana. (Id.) He also noted that He further noted marijuana use on (Id.) 7 8 On February 6, 2009, Dr. Aryanpur noted that plaintiff s mood was 9 improved and she had less rambling speech. (A.R. 505.) He noted her 10 last marijuana use was on January 24, 2009. (Id.) 11 she continue with Tegretol, the medication for her bipolar disorder. 12 (Id.) He recommended that 13 14 On March 6, 2009, Dr. Aryanpur reported that plaintiff was doing 15 well but had a lapse . . . during her wedding which negatively affected 16 her mood but only temporarily. 17 on February 15, 2009. 18 take Tegretol. (Id.) (A.R. 564.) Her last marijuana use was He indicated that she should continue to (Id.) 19 20 On April 3, 2009, Dr. Aryanpur noted that plaintiff had family 21 stressors and is a little on edge as a result, but that she was 22 holding up fairly well. 23 three weeks ago and should continue taking Tegretol. (A.R. 560.) He noted she last used marijuana (Id.) 24 25 On May 15, 2009, Dr. Aryanpur noted that plaintiff was doing 26 better, and that the family stressors have resolved themselves. 27 (A.R. 549.) 28 marijuana Plaintiff ranked her mood 7/10. use was the day before 7 and she (Id.) should He noted her last continue taking 1 Tegretol. (Id.) 2 3 An Adult Annual Re-Assessment was completed on May 29, 2009, by 4 T. Drumgole, IMF. (A.R. 572-77.) In the Re-Assessment, plaintiff was 5 diagnosed with bipolar disorder, NOS, and cannabis dependence. 6 572.) 7 poor, and her memory was slightly impaired. 8 a depressed mood, flight of ideas/racing thoughts, excessive anxiety, 9 muscle (A.R. Plaintiff s motor activity was restless, her concentration was tension, (Id.) recurrent distressing (A.R. 574.) Plaintiff had dreams, and fear of losing 10 control. Plaintiff s thought process was characterized as 11 blocking and reflecting flight of ideas/loose associations. 12 Her thought content was mood congruent, she had no delusions, but she 13 did have visual perceptions/hallucinations. 14 average general fund of knowledge, fair insight, and poor judgment and 15 impulse control. 16 (A.R. 573.) (Id.) (Id.) (Id.) She had a low Plaintiff was assessed a GAF score of 50.1 17 18 At the hearing before the ALJ, plaintiff testified that her bipolar 19 disorder was her most serious problem. 20 causes her uncontrollable emotions and anxiety, and it affects her 21 ability to work, because if she can t keep the moods under control, 22 it s not good to be around people. 23 that she takes Tegretol for the bipolar disorder. (A.R. 32.) (A.R. 33-34.) She stated that it Plaintiff testified (A.R. 33) She also 24 25 26 27 28 1 The GAF scale [c]onsider[s] psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, DSM IV TR, 34 (rev. 4th ed. 2000). A rating of 41 50 reflects [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. 8 1 goes to a co-occurring disorder group at the mental health clinic 2 twice a week for her mental illness and marijuana addiction. (A.R. 41.) 3 4 After the ALJ s adverse November 12, 2009 decision, plaintiff s 5 counsel provided to the Appeals Council a Mental Impairment 6 Questionnaire from Dr. Aryanpur dated January 20, 2010. (A.R. 651-54.) 7 8 9 In the Impairment Questionnaire, Dr. Aryanpur opined that plaintiff suffered from bipolar disorder, NOS. (A.R. 651.) He assessed a GAF 10 score of 50 and noted that plaintiff s highest GAF score in the past 11 year was 56. 12 guarded. 13 impairment and symptoms as mood swings and depression which cause 14 apathy, lethargy, feelings of worthlessness, impairment in focus and 15 concentration, 16 attempts. (A.R. 652.) 17 slight restriction of activities of daily living; marked difficulties in 18 maintaining social functioning; frequent deficiencies in concentration, 19 persistence, 20 decompensation. 21 impairments or treatment would cause her to be absent from work more 22 than three times a month. 23 prescribed medications (Tegretol and Trazodone) cause drowsiness. (Id.) 24 Dr. Aryanpur concluded that plaintiff s emotional instability, low 25 energy and decrease[d] ability to concentrate preclude [her] from 26 substantial full-time employment. (Id.) Dr. Aryanpur opined that plaintiff s prognosis is (A.R. 653.) or and he pace; Dr. Aryanpur described plaintiff s mental noted that plaintiff had two suicide He indicated plaintiff s limitations to be: and (A.R. 654.) repeated episodes of deterioration or Dr. Aryanpur also noted that plaintiff s (A.R. 653.) He stated that plaintiff s (A.R. 654.) 27 28 has The Appeals Council denied review, stating: 9 1 We considered the medical source statement that your 2 representative submitted with the request for review . . . but 3 the assessment was not accompanied by an explanation with 4 specific 5 explanation with specific references to the treatment record, 6 we have concluded that the record does not support the 7 assessment and that the assessment . . . would not have 8 changed the [ALJ s] decision in the case. 9 the entire record and we have found no basis for changing the 10 references to treatment records. Absent an We have reviewed [ALJ s] decision. 11 12 (A.R. 2.) 13 ALJ s failure to properly consider the medical evidence as it pertains 14 to the extent and severity of her mental impairment, and in light of 15 the additional evidence she presented to the Appeals Council. (Joint 16 Stip. 4-5.) Plaintiff argues that a remand is appropriate based on the The Court agrees. 17 18 Although the ALJ found plaintiff s bipolar disorder and marijuana 19 addiction to be severe, he does not address these impairments in any 20 other portion of his opinion. 21 that a claimant has a severe impairment at step two, all medically 22 determinable impairments must be considered in the remaining steps of 23 the sequential analysis. 24 may 25 necessarily limit the ability to perform basic work activities if the 26 medical record supports such a finding. 27 1219, 1228 29 (9th Cir. 2009)(finding that the ALJ adequately accounted 28 for a mental disorder despite finding it did not limit all work). properly conclude (A.R. 13.) When an ALJ has determined See Orn, 495 F.3d at 630. that a severe 10 mental However, an ALJ impairment does not See Bray v. Comm r, 554 F.3d Here, 1 the ALJ neither determined whether plaintiff s severe mental impairment 2 limited her ability to perform basic work activities nor considered the 3 uncontradicted evidence regarding plaintiff s mental impairment in the 4 remaining steps of the sequential analysis. 5 make any credibility findings as to whether the mental impairment could 6 reasonably be expected to produce plaintiff s complaints.2 Thus, the ALJ 7 committed error. Further, the ALJ did not 8 9 Further, because the Appeals Council considered, inter alia, the 10 Impairment Questionnaire in deciding whether to review the ALJ s 11 decision, this Court also must consider such evidence in determining 12 whether the ALJ s decision was supported by substantial evidence and 13 free from legal error. 14 Cir. 2012)( when the Appeals Council considers new evidence in deciding 15 whether to review a decision of the ALJ, that evidence becomes part of 16 the administrative record, which the district court must consider when 17 reviewing the Commissioner s final decision for substantial evidence ); 18 Warner v. Astrue, 859 F. Supp. 2d 1107, 1114-15 (C.D. Cal. 2012)(though 19 the Appeals Councils is not required to provide reasons for discounting 20 additional evidence, the Court reviews the ALJ s decision in light of 21 the record as a whole, including the evidence submitted for the first 22 time to the Appeals Council )(citing Taylor v. Comm r, 659 F.3d 1228, See Brewes v. Comm r, 682 F.3d 1157, 1163 (9th 23 2 24 25 26 27 28 The ALJ must make a finding on the credibility of the statements based on a consideration of the entire record whenever statements about intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence. The ALJ's findings must be sufficiently specific to allow a reviewing court to conclude the [ALJ] rejected [the] claimant s testimony on permissible grounds and did not arbitrarily discredit the claimant s testimony. Moisa v. Barnhart, 367 F.3d 882, 884 (9th Cir. 2004)(quoting Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001)). 11 1 1231 32 (9th Cir. 2011)). The Court may remand upon finding that there 2 is a substantial likelihood the ALJ s consideration of the additional 3 evidence submitted to the Appeals Council will materially alter the 4 ALJ s disability analysis. Warner, 859 F. Supp. 2d at 1117. 5 6 As noted above, although the ALJ determined that plaintiff s 7 bipolar disorder and marijuana addiction were severe at step two of the 8 sequential analysis, the ALJ failed consider their effects in the 9 remaining steps of the analysis. Dr. Aryanpur s Impairment 10 Questionnaire provides a link between the treating notes from Riverside 11 County and plaintiff s specific mental limitations and restrictions that 12 had not been considered by the ALJ. 13 RFC assessment, there is substantial evidence in the record to show that 14 plaintiff s mental impairment limits her ability to perform basic work 15 activities. 16 additional evidence submitted to the Appeals Council, this Court cannot 17 conclude that the ALJ s decision is supported by substantial evidence, 18 or that any error is harmless. 19 additional evidence submitted to the Appeals Council may materially 20 alter the ALJ s disability analysis. 21 to permit the ALJ to properly evaluate all of plaintiff s medical 22 records concerning her mental impairment. 23 F.3d 881, 888 (9th Cir. 2011)(remand appropriate when there was a 24 substantial 25 evidence 26 analysis). With the addition of Dr. Aryanpur's Therefore, in view of the evidence before the ALJ and the likelihood submitted to that the Indeed, the ALJ s consideration of the the Therefore, remand is appropriate ALJ s Appeals 27 28 12 See McLeod v. Astrue, 640 consideration Council could of alter additional the ALJ s 1 II. The ALJ Failed To Set Forth Clear And Convincing Reasons For 2 Finding Plaintiff s Testimony Regarding 3 Her Subjective Symptoms And Pain To Be Not Credible. 4 5 Once a disability claimant produces objective medical evidence of 6 an underlying impairment that is reasonably likely to be the source of 7 claimant s subjective symptom(s), all subjective testimony as to the 8 severity of the symptoms must be considered. 9 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 20 §§ 404.1529(a), 10 C.F.R. 11 symptoms 12 malingering based on affirmative evidence thereof, he or she may only 13 find an applicant not credible by making specific findings as to 14 credibility 15 Robbins, 466 F.3d at 883. 16 claimant s credibility include: 17 truthfulness; (2) inconsistencies either in the claimant s testimony or 18 between the claimant s testimony and her conduct; (3) the claimant s 19 daily activities; (4) the claimant s work record; and (5) testimony from 20 physicians and third parties concerning the nature, severity, and effect 21 of the symptoms of which the claimant complains. 22 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. §§ 23 404.1529(c), 416.929(c). are 416.929(a) Moisa, 367 F.3d at 885; evaluated). and stating (explaining [U]nless clear and an ALJ convincing how pain makes a reasons and other finding for of each. The factors to be considered in weighing a (1) the claimant s reputation for See Thomas v. 24 25 Here, the ALJ found that [a]fter careful consideration of the 26 evidence . . . [plaintiff] s medically determinable impairments could 27 reasonably be expected to cause the alleged symptoms. (A.R. 17.) 28 Further, plaintiff. the ALJ cited no evidence 13 of malingering by 1 Nonetheless, the ALJ concluded that plaintiff s statements concerning 2 the intensity, persistence and limiting effects of these symptoms are 3 not 4 assessment. 5 plaintiff was not credible with respect to her subjective symptom and 6 pain testimony must be clear and convincing. credible to the (Id.) extent they varied from the ALJ s own RFC Accordingly, the ALJ s reasons for finding that 7 8 During the June 9, 2009 hearing, plaintiff testified that she had 9 back problems and arthritis that caused problems [] sitting or standing 10 for very long periods of time ; in particular, once a week, her back 11 pain requires her to lay on the floor until the pain stops. 12 46-47; see also A.R. 38-39, 48-49.) 13 a regular basis is at an eight out of a ten level of severity. 14 47-48.) 15 left 16 Plaintiff also experiences dizziness, ringing in her ears, and balance 17 problems. 18 her ability to concentrate and focus on a job. 19 testified that she could sit a half an hour before she would have to 20 change positions and could stand for only an hour at a time. 21 further testified that she could not work a full-time job due to her 22 own head, because I overdo myself, and then I get overwhelmed. 23 53.) (A.R. 35, She testified that her back pain on (A.R. She testified that her right shoulder hurts frequently and her knee is hyperextended (A.R. 50-51.) and bothers her. (A.R. 39, 49-50.) She stated that her symptoms interfere with (A.R. 52.) Plaintiff (Id.) She (A.R. 24 25 The ALJ found 12 reasons for finding plaintiff to lack credibility 26 with respect to her subjective symptoms and pain. (A.R. 16-17.) These 27 stated reasons were: 28 plaintiff s allegations of pain or other limitations (reasons three (1) the objective evidence did not support 14 1 through seven, nine, ten, and twelve); (2) plaintiff s testimony 2 regarding her daily activities was inconsistent with her subjective 3 symptom/pain complaints (reasons one and two); (3) plaintiff s symptoms 4 were well-controlled by her medication (reason eight); and (4) no 5 physician ever opined that plaintiff s severe impairments met or equaled 6 listing level limitations (reason eleven). (Id.) 7 8 9 10 Eight of the twelve bases for the ALJ s rejection of plaintiff s subjective complaints essentially were that the objective medical evidence did not corroborate the alleged symptom/pain severity.3 (A.R. 11 12 3 Specifically the ALJ cited to the following objective evidence (A.R. 16-17): 13 14 15 16 17 18 19 20 21 Third, lumbosacral spin x-rays taken on August 2, 2007, revealed no significant abnormalities demonstrated. Fourth, during the August 20, 2007, consultative orthopedic examination by Dr. Boeck, [plaintiff] was noted to stand with shoulders level and pelvic crests level; her head was held straight and spinal alignment was normal with legs straight and feet pointing straight ahead; and her walking was even, steady and heel-to-toe, and no limp was present. Fifth, the August 24, 2007 arthrogram of her right shoulder was unremarkable. Sixth, on March 27, 2008, [plaintiff] had an MRI scan of her lumbar spine. Impressions of the scan were of only some mild discogenic inferior endplate marrow edema noted at L5. Seventh, additional x-rays were taken of [plaintiff s] right shoulder on September 23, 2008 and October 24, 2008, with the resulting impressions of unremarkable right shoulder x-rays. 22 . . . . 23 24 25 26 27 28 Ninth, December 10, 2008, lumbar spine x-rays revealed no fracture or significant degenerative changes. Tenth, again on February 18, 2009, lumbar spine x-rays showed no acute changes to the lumbar spine. . . . . Twelfth, the objective evidence of [plaintiff s] medical record does not establish impairments likely to produce disabling pain or other limitations as alleged for any period 15 1 16-17.) Although 2 determining the severity of the claimant s pain and its disabling 3 effects, once a claimant produces objective medical evidence of an 4 underlying impairment, an ALJ may not reject a claimant s subjective 5 complaints based solely on lack of objective medical evidence to fully 6 corroborate the alleged severity of pain. Rollins, 261 F.3d at 856 57; 7 see also Bunnell, 947 F.2d at 347 (noting that [i]f an adjudicator 8 could reject a claim of disability simply because a claimant fails to 9 produce evidence supporting the severity of the pain there would be no 10 reason for an adjudicator to consider anything other than medical 11 findings ). 12 ninth, tenth, and twelfth reasons, the failure of the objective medical 13 evidence 14 subjective symptoms/pain constitutes a valid reason for finding her 15 testimony to lack credibility only if the other reasons upon which the 16 ALJ based his credibility finding are supported by substantial evidence 17 in the record. 18 by the ALJ for rejecting plaintiff's testimony are not convincing. to the medical evidence is a relevant factor in Thus, with respect to the ALJ s third through seventh, fully corroborate plaintiff s testimony regarding her However, as discussed below, the other reasons posited 19 First, the Court finds that the ALJ s summary of plaintiff s daily 20 21 activities 22 activities. 23 1999)( inaccurate characterization of the evidence constitutes error). 24 The ALJ opined -- referencing plaintiff s Exertional Daily Activities 25 Questionnaire Since Your Disability Began and her testimony at the June 26 9, 2009 mischaracterizes plaintiff s regarding those See Regennitter v. Comm r, 166 F.3d 1294, 1297 (9th Cir. hearing -- that plaintiff s 27 28 statements of 12 or more continuous months. 16 daily activities include: 1 independently caring for her own personal hygiene; shopping; and 2 performing household chores, such as cleaning and laundry; performing 3 yard work; driving a vehicle; attending COD meeting and attending 4 church. 5 that plaintiff s activities are inconsistent with a disabling level of 6 impairment. 7 explained that she does a small load of laundry, drives as far as I 8 have 9 trim[ming] rose bushes but it hurts her back and shoulders, and while 10 she performs household chores, it hurts me a lot and I get very winded 11 and tire easily. 12 hearing that she has somebody help her with the groceries out to the 13 car. 14 extent of plaintiff s activities that failed to take these significant 15 qualifications and limitations into account. See Reddick v. Chater, 157 16 F.3d 715, 722-23 (9th Cir. 1998)(the ALJ erred in developing the 17 evidentiary basis for his finding by not fully accounting for all 18 evidence of record and by inaccurately paraphrasing portions of the 19 record). (See A.R. 16.) to, (Id.) her However, in the same Questionnaire, plaintiff yard (A.R. 41.) Based on his description, the ALJ concluded work consists (A.R. 201-02.) of cleaning dog poop and Plaintiff also testified at the The ALJ erred in drawing conclusions regarding the 20 21 The ALJ also rejected plaintiff s subjective complaints, because 22 [p]erforming activities such as mowing the lawn, is not consistent with 23 an individual too disabled to perform any work activity. 24 However, plaintiff testified that she dislocated her shoulder while 25 pulling on the lawn mower starter, and thus, I don t do lawnmowers 26 anymore. 27 evidence. (A.R. 40.) (A.R. 16.) The ALJ s finding, therefore, is contrary to the 28 17 1 Moreover, the ALJ does not articulate how plaintiff s daily 2 activities are at odds with her alleged pain, as well as her mental and 3 physical limitations. 4 to care for herself, grocery shop with the assistance of others, perform 5 light household chores (albeit, becoming exhausted when she does so), 6 and drive to attend meetings and church translates into the ability to 7 perform full-time work. 8 (9th Cir. 2001)(noting that the mere fact that a plaintiff has carried 9 on certain daily activities, such as grocery shopping, driving a car, or 10 limited walking for exercise, does not in any way detract from her 11 credibility as to her overall disability ); Smolen v. Chater, 80 F.3d 12 1273, 1283 n.7 (9th Cir. 1996)( The Social Security Act does not require 13 that claimants be utterly incapacitated to be eligible for benefits, and 14 many 15 environment where it might be impossible to rest periodically or take 16 medication. ). 17 constitute clear and convincing reasons for finding plaintiff to be not 18 credible. home activities The ALJ fails to explain how plaintiff s ability See Vertigan v. Halter, 260 F.3d 1044, 1050 may not be easily transferable to a work Therefore, the ALJ s first and second reasons do not 19 20 Second, the ALJ s rejection of plaintiff s subjective complaints on 21 the ground that plaintiff takes hydrocholorothiazide for Meniere s 22 disease and Tegretol for bipolar disorder; [and] there are no reports of 23 complications from either the Meniere s disease or the bipolar disorder 24 and they appear to be well-controlled on medication (A.R. 17) also is 25 not convincing, because it is not supported by the evidence. 26 to the ALJ s contention that plaintiff s Meniere s disease and bipolar 27 disease appear to be well-controlled, plaintiff testified that, 28 although she takes hydrochlorothiazide for her left ear, she has 18 Contrary 1 problems with it. (A.R. 33.) In addition, as noted above, plaintiff 2 testified that her ear problem offsets her and makes her dizzy, 3 causing her to periodically lose her balance and fall. 4 Further, in response to the ALJ s question, would you say that your 5 bipolar is fairly well controlled, plaintiff responded, [it] still 6 gives me problems, including [u]ncontrollable emotions and anxiety. 7 (A.R. 34.) 8 her bipolar disorder and [i]t seems to be doing all right : (A.R. 51.) Plaintiff also testified that, while she takes Tegretol for 9 10 I discussed with my doctor when I just saw him that we might 11 need to do something else. 12 stress of what I ve been going through with this right now, 13 but I ve been getting manic -- more on the manic side, I ve 14 noticed. I don t know if it s just added I haven t been able to sleep. 15 16 (A.R. 33-34.) Moreover, the ALJ does not explain how the purportedly 17 well-controlled nature of plaintiff s Meniere s disease and bipolar 18 disease would, in the light of her other impairments, undermine her 19 complaints of pain or would make plaintiff able to perform work-related 20 functions. 21 plaintiff is unpersuasive. Accordingly, the ALJ s eighth reason for discrediting 22 23 Third, the ALJ stated that plaintiff is not fully credible, because 24 when discussing [plaintiff s] impairments, no physician, neither any of 25 the [plaintiff s] treating physicians or a State Agency physician, ever 26 opined that listing level limitations were ever met or equaled. (A.R. 27 17.) 28 subjective symptom/pain testimony. This is not a legally valid reason for rejecting plaintiff s Whether or not an impairment meets 19 1 or medically equals a listed impairment has no reasonable bearing upon 2 a claimant s credibility. 3 satisfy a Listing for purposes of the step three analysis does not 4 prevent it from constituting a disabling impairment under the Social 5 Security Act. 6 not tenable. The fact that a severe impairment does not The ALJ s eleventh reason for discrediting plaintiff is 7 8 In sum, the 12 reasons given by the ALJ were not clear and 9 convincing reasons for discrediting plaintiff s testimony. Accordingly, 10 the ALJ s adverse credibility determination constitutes reversible 11 error. 12 13 III. On Remand, The ALJ Must Reconsider Plaintiff s Ability to 14 Perform Her Past Relevant Work And Her Ability To Perform 15 Other Work . 16 17 Relying on the vocational expert s testimony, the ALJ determined 18 that plaintiff could perform her past relevant work as a telemarketer, 19 both as she actually performed the duties and as they are generally 20 performed in the national economy, because such work would not be 21 precluded by [plaintiff s] exertional or non-exertional limitations. 22 (A.R. 18.) 23 24 To qualify as past relevant work, work activity must have, among 25 other things, amounted to substantial gainful activity. 20 C.F.R. §§ 26 404.1565(a), 416.965(a). 27 as a telemarketer does not qualify as past relevant work, because: 28 based on her sparse Plaintiff argues that her limited experience earnings as 20 a telemarketer, her work as a 1 telemarketer does not meet the substantial gainful activity criterion 2 of the past relevant work test; and she did not perform [work as a 3 telemarketer] long enough to adequately learn this job. 4 at 16-17.) (Joint Stip. 5 6 The record reflects that in 2007, plaintiff earned $212.00 as a 7 telemarketer. (A.R. 123, 220.) 8 Administration ( SSA ) website, the baseline amount for substantial 9 gainful activity was According to the Social Security $900 per month in 2007. See 10 http://www.ssa.gov/OACT/COLA/sga.html. Thus, as plaintiff s average 11 monthly income in 2007 fell below the requisite baseline amounts for 12 substantial gainful activity, her past work -- for approximately one 13 month -- as a telemarketer could not have constituted past relevant 14 work. 15 16 Further, it appears that plaintiff s work as a telemarketer did not 17 last long enough for plaintiff to learn to perform this job, according 18 to the Dictionary of Occupational Titles ( DOT ). 19 The DOT lists Specific Vocational Preparation ( SVP ) ratings for each 20 described occupation. 21 required by a typical worker to learn the techniques, acquire the 22 information, and develop the facility needed for average performance in 23 a 24 According to the DOT, a telemarketer has a SVP level of three. 25 299.357-014. 26 will require [o]ver 1 month up to and including 3 months to learn the 27 skills necessary to perform the job. 28 According to the record, plaintiff performed this job for approximately specific job-worker (Joint Stip. at 16.) SVP is defined as the amount of lapsed time situation. DOT, app. C, 1991 WL 688702. DOT A job with a three SVP rating means that a typical worker 21 DOT, app. C, 1991 WL 688702. 1 one month. (A.R. 126.) 2 telemarketer 3 plaintiff spent at the job. appears Thus, on its face, the DOT s SVP rating for a to be inconsistent with the length of time 4 5 The vocational expert did not explain or justify this discrepancy 6 between his testimony and the DOT, and the ALJ failed to inquire about 7 this discrepancy. 8 Astrue, 486 F.3d 1149, 1153 54 (9th Cir. 2007)(only after determining 9 whether the vocational expert has deviated from the DOT and whether any 10 deviation is reasonable may an ALJ properly rely on the vocational 11 expert s testimony as substantial evidence to support a disability 12 determination). 13 telemarketer 14 substantial evidence and was error. This failure constitutes error. See Massachi v. Accordingly, the ALJ s conclusion that plaintiff s job was past relevant work is not supported by 15 16 Defendant argues that this error is harmless, because the ALJ also 17 determined that plaintiff could perform other work that existed in 18 significant 19 quotations clerk, pari-mutuel ticket checker, and order clerk food 20 and beverage. 21 alternative finding was not supported by substantial evidence, because 22 the ALJ failed to pose a complete and accurate hypothetical to the 23 vocational expert. 24 that the ALJ needs to review and reconsider on remand, the Court does 25 not 26 plaintiff s RFC, and thus her capacity to perform other work, may 27 change. 28 evaluate all of plaintiff s mental health records and assess properly address numbers in the national (Joint Stip. at 19.) this economy, because as telephone Plaintiff argues that the ALJ s (Joint Stip. at 17.) issue, such the As there are several matters ALJ s conclusion regarding To properly review and reconsider this issue, the ALJ needs to 22 1 what weight, if any, this evidence has on the ALJ s assessment of 2 plaintiff s RFC and credibility. Further, to the extent plaintiff s RFC 3 may need to be reassessed, additional testimony from a vocational expert 4 likely will be required. 5 6 IV. Remand Is Required. 7 8 The decision whether to remand for further proceedings or order an 9 immediate award of benefits is within the district court s discretion. 10 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 11 useful purpose would be served by further administrative proceedings, or 12 where the record has been fully developed, it is appropriate to exercise 13 this discretion to direct an immediate award of benefits. 14 ( [T]he decision of whether to remand for further proceedings turns upon 15 the likely utility of such proceedings. ). 16 outstanding issues that must be resolved before a determination of 17 disability can be made, and it is not clear from the record that the ALJ 18 would be required to find the claimant disabled if all the evidence were 19 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 20 21 Remand is the appropriate remedy to allow the ALJ the opportunity 22 to remedy the above-mentioned deficiencies and errors. 23 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so 24 that the ALJ could articulate specific and appropriate findings, if any 25 existed, for rejecting the claimant s subjective pain testimony). 26 /// 27 /// 28 /// 23 See, e.g., 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: December 5, 2012 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 24
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