Diane Gibson v. Michael J. Astrue, No. 5:2012cv00459 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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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 17 DIANE GIBSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-459-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on April 16, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on April 26, 2012. 1 Plaintiff filed a motion for summary judgment on September 14, 2012. 2 Defendant filed a motion for summary judgment on October 15, 2012. 3 Plaintiff filed a Reply on October 18, 2012. 4 motions under submission without oral argument. 5 Order, filed April 18, 2012. The Court has taken the See L.R. 7-15; 6 7 BACKGROUND 8 9 Plaintiff asserts disability based on a combination of alleged 10 impairments (Administrative Record ( A.R. ) 1168, 1262-72, 1583-84, 11 1595-1603). 12 severity (A.R. 1583-84, 1598). Plaintiff testified to pain of allegedly disabling 13 14 An Administrative Law Judge ( ALJ ) found Plaintiff suffers from 15 severe impairments with which some pain may be associated, including 16 diabetes mellitus II (with related peripheral neuropathy1), and 17 degenerative disc disease of the lumbar spine (A.R. 1168-70). 18 ALJ denied disability benefits, however, after finding Plaintiff s 19 testimony only partially credible (A.R. 1171-72). 20 analysis set forth in the ALJ s decision reads in full: 21 /// 22 /// The credibility 23 1 24 25 26 27 28 The ALJ s reference to peripheral Iraqi at page 1169 of the Administrative Record is understood to be a reference to peripheral neuropathy. Although the ALJ did not list peripheral neuropathy as a separate severe impairment at page 1168 of the Administrative Record, Defendant concedes that Plaintiff s neuropathy is a symptom of her severe impairment of diabetes mellitus, which results in significant functional limitation (Defendant s Motion at 2). The medical expert testified that peripheral neuropathy is consistent with pain (A.R. 1590-92). 2 The 1 The claimant s allegations are considered to be only 2 partially credible as there is little in the way of 3 objective signs, symptoms and findings in the record to 4 support her allegations to the extent alleged. 5 the severity of these allegations, however, is not 6 commensurate with the finding of disability based on meeting 7 or equaling the listings and these findings do not support 8 any limitations that are more restrictive than what is found 9 herein. Moreover, 10 11 (A.R. 1171). The Appeals Council denied review (A.R. 1158-60). 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. section 405(g), this Court reviews the 16 Administration s decision to determine if: (1) the Administration s 17 findings are supported by substantial evidence; and (2) the 18 Administration used correct legal standards. 19 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 20 499 F.3d 1071, 1074 (9th Cir. 2007). 21 relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion. 23 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 24 454 F.3d 1063, 1067 (9th Cir. 2006). 25 /// 26 /// 27 /// 28 /// See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 3 1 DISCUSSION 2 3 When an ALJ determines that a claimant s testimony regarding pain 4 severity is not credible, the ALJ must make specific, cogent 5 findings, supported in the record, to justify the ALJ s determination. 6 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see Rashad v. 7 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. Secretary, 8 846 F.2d 581, 584 (9th Cir. 1988).2 9 do not suffice. Generalized, conclusory findings See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 10 2004) (the ALJ s credibility findings must be sufficiently specific 11 to allow a reviewing court to conclude the ALJ rejected the claimant s 12 testimony on permissible grounds and did not arbitrarily discredit the 13 claimant s testimony ) (internal citations and quotations omitted); 14 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 15 must specifically identify the testimony [the ALJ] finds not to be 16 credible and must explain what evidence undermines the testimony ); 17 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) ( The ALJ must 18 state specifically which symptom testimony is not credible and what 19 facts in the record lead to that conclusion. ); see also Social 20 Security Ruling 96-7p. 21 the present case is plainly insufficient. The ALJ s conclusory credibility analysis in See id. 22 23 24 25 26 27 28 2 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 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). In the present case, the ALJ s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 4 1 The ALJ s decision appears to assert that unspecified objective 2 signs, symptoms and findings in the record do not fully corroborate 3 Plaintiff s testimony regarding the severity of her pain. 4 of fully corroborative medical evidence cannot form the sole basis for 5 rejecting the credibility of a claimant s subjective complaints. 6 Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 7 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 8 (9th Cir. 2005) ( lack of medical evidence can be a factor in 9 rejecting credibility, but cannot form the sole basis ). 10 claim that the severity of these allegations . . . is not 11 commensurate with the finding of disability based on meeting or 12 equaling the listings . . . adds nothing material to the credibility 13 analysis. 14 nevertheless may be found disabled at the last step in the sequential 15 analysis. 16 C.F.R. ยง 416.920; see also A.R. 1168. The absence See The ALJ s A claimant who does not meet or equal any of the listings See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); 20 17 18 In an effort to support the ALJ s conclusion regarding 19 Plaintiff s credibility, Defendant cites Plaintiff s alleged daily 20 activities and failure to stop smoking (Defendant s Motion at 5-6). 21 The ALJ did not expressly rely on either of these considerations in 22 deeming Plaintiff s pain testimony only partially credible. 23 did not mention Plaintiff s alleged daily activities in any part of 24 the decision (A.R. 1166-72). 25 Plaintiff s alleged daily activities in an earlier decision, but the 26 present decision does not incorporate the earlier decision. 27 the present ALJ found that Plaintiff had alleged a change in her 28 medical condition since the initial decision manifested by the The ALJ A prior (different) ALJ mentioned 5 In fact, 1 development of additional physical complaints, which prevented an 2 application of administrative res judicata to Plaintiff s physical 3 medical conditions (A.R. 1171). 4 smoking, but only in connection with gauging the severity of 5 Plaintiff s alleged respiratory problems (A.R. 1170).3 6 present ALJ did not invoke Plaintiff s daily activities or smoking as 7 reasons for rejecting Plaintiff s credibility, this Court cannot 8 affirm the ALJ s decision on the basis of these considerations. 9 Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court cannot 10 affirm the decision of an agency on a ground that the agency did not 11 invoke in making its decision ). The present decision mentions Because the See 12 13 Because the circumstances of the case suggest that further 14 administrative review could remedy the ALJ s error, remand is 15 appropriate. 16 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 17 (remand is an option where the ALJ fails to state sufficient reasons 18 for rejecting a claimant s excess symptom testimony); but see Orn v. 19 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 20 cite Connett for the proposition that [w]hen an ALJ s reasons for 21 rejecting the claimant s testimony are legally insufficient and it is 22 clear from the record that the ALJ would be required to determine the McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 23 24 25 26 27 28 3 In the Ninth Circuit, it may be an open issue whether a claimant s failure to stop smoking ever can support an adverse credibility finding. Compare Reeves v. Astrue, 2012 WL 1032778, at *6 (W.D. Wash. March 6, 2012), adopted, 2012 WL 1029669 (W.D. Wash. March 27, 2012) with Collins v. Astrue, 2011 WL 4345860, at *13 (E.D. Cal. Sept. 15, 2011); see also Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009). The Court need not and does not reach this issue in the present case. 6 1 claimant disabled if he had credited the claimant s testimony, we 2 remand for a calculation of benefits ) (quotations omitted); see also 3 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that 4 a court need not credit as true improperly rejected claimant 5 testimony where there are outstanding issues that must be resolved 6 before a proper disability determination can be made); see generally 7 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 8 administrative determination, the proper course is remand for 9 additional agency investigation or explanation, except in rare 10 circumstances). 11 12 CONCLUSION 13 14 For all of the foregoing reasons,4 Plaintiff s and Defendant s 15 motions for summary judgment are denied and this matter is remanded 16 for further administrative action consistent with this Opinion. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: October 19, 2012. 21 22 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 25 26 4 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 7
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