Raedene Marlene Chico v. Michael J Astrue, No. 5:2012cv00558 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. Accordingly, the case is remanded for further proceedings consistent with this opinion and order so that the ALJ may further evaluate Plaintiffs subjective symptom testimony and credibility. (twdb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 RAEDENE MARLENE CHICO, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-00558-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Raedene Marlene Chico ( Plaintiff ) seeks judicial review 20 of the Commissioner s final decision denying her applications for 21 disability insurance benefits ( DIB ) and supplemental security income 22 benefits ( SSI ), pursuant to Titles II and XVI of the Social Security 23 Act. For the reasons stated below, the Commissioner s decision is 24 remanded for further proceedings. 25 26 I. Factual and Procedural Background 27 Plaintiff was born on May 29, 1978 and was 30 years old at the time 28 she filed her applications for benefits. (Administrative Record ( AR ) 1 at 136). She has work experience as a dispatcher. (AR at 67). 2 On January 30, 2009, Plaintiff filed applications for DIB and SSI, 3 alleging that she has been disabled since May 14, 2008, due to a back 4 injury, pain and numbness in her legs, depression, and anxiety. (AR at 5 167). The Social Security Administration denied Plaintiff s applications 6 by initial determination. (AR at 60, 79-83). 7 An administrative hearing was held before Administrative Law Judge 8 ( ALJ ) Selwyn Walters on March 19, 2010. (AR at 16-54). Plaintiff, who 9 was represented by counsel, testified at the hearing. (AR at 22-50). In 10 a written decision dated May 28, 2010, the ALJ found: Plaintiff had not 11 engaged in substantial gainful activity since May 14, 2008, the date she 12 filed applications for DIB and SSI (step one); Plaintiff has medically 13 determinable severe impairments of degenerative disc disease, an annular 14 tear 15 Plaintiff s impairments did not meet or equal any impairment in the 16 Listings of Impairments (step three); Plaintiff retained the residual 17 functional capacity ( RFC ) to perform light work except she would need 18 to alternate sitting and standing once an hour for 10 minutes at a time 19 in addition to regularly scheduled breaks; and Plaintiff would be able 20 to perform her past relevant work as a dispatcher (step four). (AR at 21 60-68). Accordingly, the ALJ determined that Plaintiff was not disabled. 22 (AR at 68). at L5-S1 of the lumbosacral spine and obesity (step two); 23 On January 24, 2012, the Appeals Council denied review, and the 24 ALJ s decision became the final decision of the Commissioner. (AR at 73- 25 77). Plaintiff commenced this action for judicial review on April 19, 26 2012. The parties filed a Joint Stipulation of disputed issues of law 27 and fact on October 4, 2012. Plaintiff contends that the ALJ: (1) failed 28 to properly evaluate Plaintiff s credibility; and (2) failed to properly 2 1 evaluate the opinions of Plaintiff s physicians. (Joint Stipulation at 2 4-7, 11-16, 17-18). Plaintiff seeks remand for payment of benefits or, 3 in the alternative, remand for further proceedings. (Joint Stipulation 4 at 18). The Commissioner requests that the ALJ s decision be affirmed. 5 (Joint Stipulation at 19). 6 7 II. Standard of Review Under 8 42 U.S.C. § 405(g), a district court may review the 9 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 10 findings and decision should be upheld if they are free from legal error 11 and are supported by substantial evidence based on the record as a 12 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 13 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 14 evidence means such evidence as a reasonable person might accept as 15 adequate 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 17 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 18 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 19 2006)). To determine whether substantial evidence supports a finding, 20 the reviewing court must review the administrative record as a whole, 21 weighing both the evidence that supports and the evidence that detracts 22 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 23 720 (9th Cir. 1996). If the evidence can reasonably support either 24 affirming or reversing, the reviewing court may not substitute its 25 judgment for that of the Commissioner. Id. at 720-721. 26 // 27 // 28 // to support a conclusion. 3 Richardson, 402 U.S. at 401; 1 III. Discussion 2 A. Plaintiff s Credibility 3 Plaintiff alleges she suffers from significant pain and limitations 4 due to her low back impairment. (AR 30-39). She alleges that she can 5 stand for 10 to 15 minutes and sit for approximately 30 minutes at a 6 time. (AR at 40, 49). Plaintiff stated that she needs help with 7 activities such as cooking, laundry, washing dishes, making her bed, 8 vacuuming, cleaning the house, and fixing her hair. (AR at 40-42). 9 The ALJ found Plaintiff s subjective symptom testimony not fully 10 credible. (AR at 65-66). The ALJ explained that Plaintiff s medically 11 determinable impairments could reasonably be expected to cause the pain 12 symptoms, but that Plaintiff s allegations concerning the intensity, 13 persistence, and limiting effects of her symptoms were not credible to 14 the extent alleged. (AR at 66). The ALJ based this adverse credibility 15 determination on a lack of objective medical evidence to substantiate 16 the severity of Plaintiff s symptoms and inconsistent test results on 17 lumbosacral spine examinations. (AR at 65-66). 18 However, it is improper to discount a claimant s credibility solely 19 due to a lack of objective medical evidence to corroborate a claimant s 20 subjective symptom testimony, where, as in this case, there is objective 21 medical evidence of underlying impairments. Bunnell v. Sullivan, 947 22 F.2d 341, 345 (9th Cir. 1991) ( Once the claimant produces objective 23 medical evidence of an underlying impairment, an adjudicator may not 24 reject a claimant s subjective complaints based solely on a lack of 25 objective medical evidence to fully corroborate the alleged severity of 26 pain. ); see also Reddick, 157 F.3d at 722; Smolen v. Chater, 80 F.3d 27 1273, 1281 82 & n. 2 (9th Cir. 1996). Where there is no evidence of 28 malingering, the ALJ may reject the subjective symptom testimony only by 4 1 offering specific, clear and convincing reasons for doing so. Smolen, 2 80 F.3d at 1283 84; see also Reddick, 157 F.3d at 722. The ALJ failed to 3 do so here. 4 The Commissioner asserts that there were other valid reasons for 5 discounting Plaintiff s credibility, including evidence of malingering, 6 inconsistent statements regarding daily activities, and lack of mental 7 health treatment. (Joint Stipulation at 8-10). The ALJ, however, did not 8 cite any of these other reasons as a basis for discounting Plaintiff s 9 testimony. For example, while the ALJ noted that Plaintiff s lumbosacral 10 spine test results were inconsistent and rather odd, the ALJ never 11 found Plaintiff to be a malingerer.1 (AR at 66, 416, 462, 465). There was 12 no medical opinion in the record suggesting that lack of effort or 13 malingering was related to the widely disparate lumbosacral spine test 14 results. (AR at 66). The Commissioner also notes inconsistent statements 15 regarding Plaintiff s daily activities as a basis to reject Plaintiff s 16 credibility. (Joint Stipulation at 8-9; AR at 40-43, 65, 411); Bunnell, 17 947 F.2d at 346. Although the ALJ discussed Plaintiff s statements about 18 her daily activities in the decision, the ALJ did not identify any 19 inconsistencies in Plaintiff s statements; nor did the ALJ rely on any 20 21 22 23 24 25 26 27 28 1 The ALJ commented on Plaintiff s varying lumbosacral spine test results as follows: In April 2009, [the claimant] was noted to get on and off the examination table satisfactorily, and she had a normal gait and could walk on her heels and toes. However, she had a positive Spurling s test and a positive straight leg-raising test both seated and supine at 90 degrees. It is rather odd, therefore that Ms. Chico suddenly described pain at 45 degrees during a straight leg-raising test in October 2009 and at five degree degrees in November 2009. No explanation in the record is provided for these widely disparate results. (AR at 66) (citations omitted)). 5 1 purported inconsistent statements to reject Plaintiff s testimony.2 2 Plaintiff s lack of mental health treatment was also not cited by the 3 ALJ in his evaluation of Plaintiff s credibility. (Joint Stipulation at 4 10; AR at 66). Rather, in the decision, the ALJ merely noted that 5 Plaintiff 6 psychiatrist after a short while. (AR at 66). took psychiatric medications, but stopped seeing a 7 The Court cannot rely on reasons that the ALJ did not mention to 8 support the adverse credibility finding. See Connett v. Barnhart, 340 9 F.3d 871, 874 (9th Cir. 2003) (error to affirm ALJ s credibility 10 decision based on reasons not cited by the ALJ); Pinto v. Massanari, 249 11 F.3d 840, 847 (9th Cir. 2001) ( [W]e cannot affirm the decision of an 12 agency on a ground that the agency did not invoke in making its 13 decision. ) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 14 15 16 IV. Conclusion Accordingly, the case is remanded for further proceedings 17 consistent with this opinion and order so that the ALJ may further 18 evaluate Plaintiff s subjective symptom testimony and credibility. See 19 2 20 21 22 23 24 25 26 27 28 The ALJ described Plaintiff s daily activities as follows: With respect to activities of daily living, Ms. Chico testified that she lives with her father. She has a license and drives a few miles occasionally, she attends family gatherings, she can prepare simple foods, and she is physically unable to cook, wash the dishes, do laundry, make her bed, or vacuum, but she can sweep. Ms. Chico further testified that she will go to the grocery store with her girlfriend s assistance but that she generally spends all day in bed or watching television. She also needs assistance sometimes while showering or doing her hair. In April 2009, Ms. Chico stated that she was able to care for her personal needs, drive, handle money, go out alone, and maintain fair relationships with other people. (AR at 65 (citations omitted)). 6 1 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there 2 are outstanding issues that must be resolved before a determination of 3 disability can be made, and it is not clear from the record that the ALJ 4 would be required to find the claimant disabled if all the evidence were 5 properly evaluated, remand is appropriate).3 6 7 Dated: October 19, 2012 8 9 10 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 27 28 In light of this remand, the Court does not reach Plaintiff s remaining argument. See Bunnell, 336 F.3d at 1115-16. The Court recommends, however, that the ALJ consider all of Plaintiff s arguments when determining the merits of her case on remand. 7
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