Susanne Bean v. Michael J. Astrue, No. 5:2012cv00813 - Document 21 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (hr)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SUSANNE BEAN, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 12-813 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On May 30, 2012, plaintiff Susanne Bean ( plaintiff ) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; June 1, 2012 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On December 12, 2008, plaintiff filed an application for Supplemental 7 Security Income benefits. (Administrative Record ( AR ) 126). Plaintiff asserted 8 that she became disabled on February 1, 1994, due to lumbar disc disease, a panic 9 disorder, hearing loss, fatigue syndrome, depression, headaches and diabetes. (AR 10 143). The Administrative Law Judge ( ALJ ) examined the medical record and 11 heard testimony from plaintiff (who was represented by counsel) and a vocational 12 expert on July 14, 2010. (AR 22-45). 13 On December 21, 2010, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 10-17). Specifically, the ALJ found: 15 (1) plaintiff suffered from the following severe impairments: chronic fatigue 16 syndrome by history, diabetes, and lumbar sprain/strain (AR 12); (2) plaintiff s 17 impairments, considered singly or in combination, did not meet or medically equal 18 a listed impairment (AR 12); (3) plaintiff retained the residual functional capacity 19 to perform the full range of light work (20 C.F.R. § 416.967(b)) (AR 12); 20 (4) plaintiff could perform her past relevant work as a caterer/helper (AR 16); 21 (5) alternatively, there are jobs that exist in significant numbers in the national 22 economy that plaintiff could perform (AR 16-17); and (6) plaintiff s allegations 23 regarding her limitations were not credible to the extent they were inconsistent 24 with the ALJ s residual functional capacity assessment (AR 14). 25 The Appeals Council denied plaintiff s application for review. (AR 1). 26 /// 27 /// 28 /// 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 4 unable to engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not 7 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 8 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 9 impairment must render the claimant incapable of performing the work claimant 10 previously performed and incapable of performing any other substantial gainful 11 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 12 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 13 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 14 sequential evaluation process: 15 (1) 16 17 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 18 the claimant s ability to work? If not, the claimant is not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant s impairment, or combination of 21 impairments, meet or equal an impairment listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? If so, the claimant is 23 disabled. If not, proceed to step four. 24 (4) Does the claimant possess the residual functional capacity to 25 perform claimant s past relevant work? If so, the claimant is 26 not disabled. If not, proceed to step five. 27 28 (5) Does the claimant s residual functional capacity, when considered with the claimant s age, education, and work 3 1 experience, allow the claimant to adjust to other work that exists in 2 significant numbers in the national economy? If so, the claimant is not 3 disabled. If not, the claimant is disabled. 4 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 5 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 6 1110 (same). 7 The claimant has the burden of proof at steps one through four, and the 8 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 9 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 10 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 11 proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion. Richardson v. Perales, 19 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 20 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 21 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 22 To determine whether substantial evidence supports a finding, a court must 23 consider the record as a whole, weighing both evidence that supports and 24 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 26 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 27 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 28 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 1 IV. DISCUSSION 2 Plaintiff contends that the ALJ failed properly to evaluate the credibility of 3 her subjective complaints. (Plaintiff s Motion at 4-9). The Court agrees. As the 4 Court cannot find that the ALJ s error was harmless, a remand is warranted. 5 A. 6 Questions of credibility and resolutions of conflicts in the testimony are Pertinent Law 7 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 8 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 9 and is supported by substantial evidence, it is not the court s role to second10 guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 11 An ALJ is not required to believe every allegation of disabling pain or other 12 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 13 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 14 the existence of a medically determinable impairment that could reasonably give 15 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 16 to the credibility of the claimant s statements about the symptoms and their 17 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 18 record includes objective medical evidence that the claimant suffers from an 19 impairment that could reasonably produce the symptoms of which the claimant 20 complains, an adverse credibility finding must be based on clear and convincing 21 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 22 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does 23 not apply is when there is affirmative evidence of malingering. Id. The ALJ s 24 credibility findings must be sufficiently specific to allow a reviewing court to 25 conclude the ALJ rejected the claimant s testimony on permissible grounds and 26 did not arbitrarily discredit the claimant s testimony. Moisa v. Barnhart, 367 27 F.3d 882, 885 (9th Cir. 2004). 28 /// 5 1 To find the claimant not credible, an ALJ must rely either on reasons 2 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 3 contradictions in the testimony, or conflicts between the claimant s testimony and 4 the claimant s conduct (e.g., daily activities, work record, unexplained or 5 inadequately explained failure to seek treatment or to follow prescribed course of 6 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 7 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 8 testimony solely because it is not substantiated affirmatively by objective medical 9 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 10 credibility assessment. Burch, 400 F.3d at 681. 11 B. 12 Here, the ALJ found plaintiff s subjective symptom testimony not credible Analysis 13 to the extent [it was] inconsistent with the [ALJ s] residual functional capacity 14 assessment. (AR 14). The ALJ provided several conclusory reasons for 15 discounting plaintiff s credibility. The Court finds none of them to be clear and 16 convincing. 17 First, it appears that the ALJ discounted plaintiff s credibility because 18 plaintiff received conservative sporadic treatment. (AR 14). The ALJ was 19 permitted to discounted plaintiff s credibility based on any unexplained failure to 20 seek treatment consistent with the alleged severity of her subjective complaints. 21 See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc) (In assessing 22 credibility, the ALJ may properly rely on plaintiff s unexplained failure to request 23 treatment consistent with the alleged severity of her symptoms.). Here, however, 24 the ALJ did not specify particular subjective complaints for which plaintiff 25 allegedly did not seek adequate treatment, nor did the ALJ identify the evidentiary 26 basis for his finding that plaintiff had failed to seek treatment consistent with her 27 subjective complaints. The ALJ s conclusory finding that plaintiff s treatment for 28 /// 6 1 unspecified impairments had been conservative or sporadic is not a clear and 2 convincing reason for discounting plaintiff s credibility. Moisa, 367 F.3d at 885. 3 Second, the ALJ s citation to basically all of plaintiff s medical records, and 4 conclusory assertion that such records do not establish an inability to perform 5 work activity for any twelve month period of time (AR 14) (citing Exhibits B1F 6 at 2-29 [AR 209-36]; B2F at 2-7 [AR 238-43]; B3F at 2-57 [AR 245-300]; B10F 7 at 2-22 [AR 335-55]) does not provide a clear and convincing reason for 8 discounting plaintiff s credibility. Moisa, 367 F.3d at 885. 9 Finally, the ALJ also suggests that plaintiff is not fully credible because the 10 objective medical evidence does not support her subjective complaints (i.e., 11 [Plaintiff s] records do not support the degree of limitations she is alleging or 12 greater work restrictions beyond those in the residual functional capacity herein. ). 13 (AR 13, 14). As detailed above, however, the ALJ did not provide any other valid 14 reason for discounting plaintiff s credibility. Lack of objective medical evidence 15 to support subjective symptom allegations alone is not sufficient to discount a 16 claimant s credibility.1 See Burch, 400 F.3d at 681. 17 The Court cannot conclude that the above errors were harmless because it 18 cannot confidently conclude that no reasonable ALJ, when fully crediting the 19 testimony, could have reached a different disability determination. Stout, 454 20 F.3d at 1055-56. At the administrative hearing, plaintiff testified, in essence, that 21 she is sick and weak most of the time, she requires a cane to ambulate, sometimes 22 she is unable to get out of her bed, she has lost a significant amount of weight, and 23 her daughter does most of everything for [her] now. (AR 33-39). In written 24 25 26 27 28 1 The ALJ noted that the report of a consultative examination of plaintiff reflects that plaintiff gave poor effort on her grip strength testing. (AR 15) (citing Exhibit B11F at 4 [AR 359]). The Court cannot conclude, as defendant suggests (Defendant s Motion at 6-7), that plaintiff s poor effort on a single grip test constituted affirmative evidence of malingering sufficient to justify wholesale rejection of plaintiff s allegations of multiple and severe subjective symptoms. 7 1 statements she submitted, plaintiff stated, inter alia, that (i) she suffers from daily 2 headaches; (ii) she can t do anything anymore and when she tries to do things 3 she get[s] really sick ; (iii) her condition affects her abilities to lift, squat, bend, 4 stand, reach, walk, sit, kneel, climb stairs, see, hear, remember, complete tasks, 5 concentrate, understand, and follow directions; (iv) she cannot walk more than a 6 block before needing to rest; (v) she cannot pay attention for more than 15-30 7 minutes at a time; (vi) she has panic attacks and cries every day; (vii) she has 8 unbearable back pain and pain in both knees, and is in pain all the time ; 9 (viii) her pain medication helps a little but makes her very sleepy; (ix) she cannot 10 sit due to her back pain; (x) she can relieve the pain only by taking pain 11 medication and then laying on her couch; and (xi) she has about 20-25 bad days 12 a month. (AR 159-60, 169-76, 182-83, 195). 13 Therefore, remand is warranted at least so the ALJ can reassess plaintiff s 14 credibility. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 8 1 V. CONCLUSION2 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.3 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: December 21, 2012 7 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. On remand, however, the ALJ may wish to reevaluate the report of the Complete Internal Medicine Evaluation of plaintiff, specifically the consultative examiner s opinion that plaintiff had multiple postural limitations (i.e., plaintiff needed to avoid frequent bending, stooping, crouching, kneeling, jumping, and walking on uneven terrain) (AR 362) limitations which the ALJ neither expressly rejected nor included in his residual functional capacity assessment for plaintiff. 3 When a court reverses an administrative determination, the proper course, except in rare 25 circumstances, is to remand to the agency for additional investigation or explanation. 26 Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings 27 could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remand is an option 28 where the ALJ stated invalid reasons for rejecting a claimant s excess pain testimony). 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
