Brenda Joyce Moore v. Carolyn W. Colvin, No. 5:2013cv00885 - Document 18 (C.D. Cal. 2013)
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 BRENDA JOYCE MOORE, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 13-885-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 May 24, 2013, seeking review of 27 the Commissioner s denial of disability benefits. The parties filed a 28 consent to proceed before a United States Magistrate Judge on June 17, 1 2013. Plaintiff filed a motion for summary judgment on October 30, 2 2013. Defendant filed a motion for summary judgment on November 29, 3 2013. The Court has taken the motions under submission without oral 4 argument. See L.R. 7-15; Minute Order, filed May 29, 2013. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability based on a combination of alleged exertional and non-exertional impairments (Administrative Record 10 ( A.R. ) 10-350). Plaintiff testified to physical and emotional 11 symptomatology of disabling severity (A.R. 28-31; see also 126-44; 12 158-61). 13 (A.R. 31-34). 14 corroborating written statement (A.R. 145-52). Plaintiff s son gave potentially corroborating testimony Plaintiff s daughter submitted a potentially 15 16 An Administrative Law Judge ( ALJ ) found Plaintiff has severe 17 physical and psychological impairments, but the ALJ also found 18 Plaintiff could perform a limited range of light work (A.R. 12-18). 19 The ALJ deemed Plaintiff s contrary testimony not credible (A.R. 14, 20 16). The Appeals Council denied review (A.R. 1-3). 21 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. section 405(g), this Court reviews the 25 Administration s decision to determine if: (1) the Administration s 26 findings are supported by substantial evidence; and (2) the 27 Administration used correct legal standards. 28 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 2 See Carmickle v. 1 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion. 4 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 5 454 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 7 DISCUSSION 8 9 10 I. The ALJ Materially Erred in Connection with the Issue of Plaintiff s Credibility. 11 12 When an ALJ finds that a claimant s medically determinable 13 impairments reasonably could be expected to cause the symptoms 14 alleged, the ALJ may not discount the claimant s testimony regarding 15 the severity of the symptoms without making specific, cogent 16 findings, supported in the record, to justify discounting such 17 testimony. 18 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. 19 Secretary, 846 F.2d 581, 584 (9th Cir. 1988).1 20 conclusory findings do not suffice. 21 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see Generalized, See Moisa v. Barnhart, 367 F.3d 22 23 24 25 26 27 28 1 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. 3 1 sufficiently specific to allow a reviewing court to conclude the ALJ 2 rejected the claimant s testimony on permissible grounds and did not 3 arbitrarily discredit the claimant s testimony ) (internal citations 4 and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 5 (9th Cir. 2001) (the ALJ must specifically identify the testimony 6 [the ALJ] finds not to be credible and must explain what evidence 7 undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th 8 Cir. 1996) ( The ALJ must state specifically which symptom testimony 9 is not credible and what facts in the record lead to that 10 conclusion. ); see also Social Security Ruling 96-7p. 11 12 In the present case, the ALJ found that Plaintiff s medically 13 determinable impairments could reasonably be expected to cause the 14 alleged symptoms (A.R. 14). 15 finding mandated that the ALJ either accept Plaintiff s testimony 16 regarding the severity of the symptoms or state specific, cogent 17 findings, supported in the record, to justify discounting such 18 testimony. 19 Plaintiff s testimony while initially stating a general conclusion and 20 then later stating specific findings which are manifestly non-cogent. 21 The ALJ initially stated the general conclusion that Plaintiff s 22 statements concerning the intensity, persistence and limiting effects 23 of these symptoms are not credible to the extent they are inconsistent 24 with the above residual functional capacity assessment (A.R. 14). 25 Such a general conclusion does not satisfy the specific findings 26 requirement. 27 Massanari, 246 F.3d at 1208; Smolen v. Chater, 80 F.3d at 1284; see 28 also Spytek v. Astrue, 2010 WL 3584549, at *5 (W.D. Wash. Aug. 12, Under the above authorities, this The ALJ did neither. Instead, the ALJ discounted See Moisa v. Barnhart, 367 F.3d at 885; Holohan v. 4 1 2010), adopted, 2010 WL 3584546 (W.D. Wash. Sept. 10, 2010) (ALJ erred 2 by stating in a conclusory fashion that the claimant s statements 3 concerning the intensity, persistence, and limiting effects of those 4 symptoms were not credible to the extent they were inconsistent with 5 the ALJ s residual functional capacity finding, although the ALJ 6 implied that the claimant s statements were not substantiated by 7 objective medical evidence ). 8 ALJ s decision for discounting Plaintiff s subjective symptom 9 testimony are contained in the ALJ s later statement that [t]he The only specific reasons expressed in 10 undersigned cannot fully credit the function report statements and 11 testimony that [Plaintiff] can hardly perform any daily activities 12 because she had good hygiene during the evaluations with Dr. Bagner 13 and did not demonstrate uncontrolled crying (A.R. 14) (emphasis 14 added). 15 in 2008 and once in 2010 (A.R. 188, 244). 16 that Plaintiff had good hygiene and did not cry uncontrollably on 17 these two occasions manifestly fails to provide a cogent reason for 18 discounting all of Plaintiff s subjective symptom testimony, including 19 her testimony that her back hurts all the time, she cannot 20 concentrate, she has no energy, and she is depressed all the time (see 21 A.R. 28-30). Dr. Bagner, a consultative psychiatrist, saw Plaintiff once The fact, if it is a fact, 22 23 In between the ALJ s stated general conclusion and the specific 24 but non-cogent reasons stated for discounting Plaintiff s credibility, 25 the ALJ summarized some of the medical reports (A.R. 14-16). 26 report summaries do not satisfy the specific findings requirement. 27 See id.; see also Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 28 1990) ( We are wary of speculating about the basis of the ALJ s 5 These 1 conclusion . . . ); Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 2 1981) (ALJ s decision should include a statement of the subordinate 3 factual foundations on which the ALJ s ultimate factual conclusions 4 are based, so that a reviewing court may know the basis for the 5 decision); Coronado v. Astrue, 2011 WL 3348066, at *8 (E.D. Cal. 6 Aug. 2, 2011) (where the reasons for the ALJ s credibility 7 determination were uncertain, and the determination overlapped and 8 blended with the ALJ s discussion of the medical record, remand was 9 appropriate). In any event, an ALJ may not rely exclusively on the 10 objective medical evidence in rejecting a claimant s credibility. 11 Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 12 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 13 (9th Cir. 2005) ( lack of medical evidence can be a factor in 14 rejecting credibility, but cannot form the sole basis ). 15 16 Defendant attempts to glean from the ALJ s decision other 17 reasons for discounting Plaintiff s testimony regarding the severity 18 of the symptoms. 19 does not specifically state that any of the other reasons Defendant 20 gleans from the ALJ s decision actually underpinned the ALJ s 21 credibility determination. 22 some of these reasons, such as Defendant s statement that none of 23 Plaintiff s treatment records or examination reports indicated a 24 problem with incontinence or Defendant s statement that Dr. Bagner 25 reported in 2008 that . . . Plaintiff . . . exhibited tight thought 26 processes; had adequate concentration and memory to register one out 27 of three objects after five minutes and do serial threes . . . and 28 denied suicidal or homicidal ideation (Defendant s Motion at 6-7). See Defendant s Motion at 6-8. The ALJ s decision The ALJ s decision does not even mention 6 1 Further, some of the reasons gleaned by Defendant are factually 2 inaccurate. 3 Plaintiff was able to . . . shop for groceries and do laundry 4 (Defendant s Motion at 8). 5 testimony (A.R. 31-34). 6 that he did the laundry and he usually did the grocery shopping (A.R. 7 34). 8 Defendant but not specifically and expressly stated by the ALJ as the 9 reason(s) for the credibility determination cannot properly form the Defendant asserts Plaintiff s son testified that In fact, Plaintiff s son gave no such To the contrary, Plaintiff s son testified Whether accurate or inaccurate, the reasons gleaned by 10 basis for a judicial affirmance of the credibility determination. See 11 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ( Connett ) 12 (district court erred by relying on reasons for discounting claimant s 13 testimony other than the reasons stated by the ALJ, even though the 14 record supported the reasons on which the district court had relied); 15 Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court cannot 16 affirm the decision of an agency on a ground that the agency did not 17 invoke in making its decision ); Watts v. Astrue, 2012 WL 2577525, at 18 *8-9 (E.D. Cal. July 3, 2012) (remand required where ALJ s decision 19 discussed the evidence potentially bearing on the claimant s 20 credibility, but provide[d] no discussion how this evidence impacted 21 the ALJ s view of Plaintiff s credibility ). 22 23 24 II. The ALJ Materially Erred in Connection With the Issue of the Lay Witnesses Credibility. 25 26 In evaluating the credibility of a claimant s assertions of 27 functional limitations, the ALJ must consider lay witnesses reported 28 observations of the claimant. See Stout v. Commissioner, 454 F.3d 7 1 1050, 1053 (9th Cir. 2006); Regennitter v. Commissioner, 166 F.3d 2 1294, 1298 (9th Cir. 1999); see also SSR 96-7p ( the adjudicator must 3 consider the entire case record, including . . . information provided 4 by . . . other persons about the symptoms and how they affect the 5 individual. ). 6 claimant s symptoms and daily activities are competent to testify as 7 to [the claimant s] condition. 8 19 (9th Cir. 1993); 20 C.F.R. ยง 404.1513(d)(4) (observations by non- 9 medical sources such as spouses, parents and other caregivers may [F]amily members in a position to observe a Dodrill v. Shalala, 12 F.3d 915, 918- 10 be used to show the severity of your impairment(s) and how it affects 11 your ability to work ). 12 witnesses only if he gives reasons germane to each witness whose 13 testimony he rejects. 14 v. Commissioner, 659 F.3d at 1234. 15 each witness must be specific. 16 (9th Cir. 2009).2 [T]he ALJ can reject the testimony of lay Smolen v. Chater, 80 F.3d at 1288; see Taylor Further, the reasons germane to Bruce v. Astrue, 557 F.3d 1113, 1115 17 18 In the present case, the ALJ failed to state specific reasons 19 germane to the rejection of the testimony of Plaintiff s son or the 20 written statements of Plaintiff s daughter. Defendant argues, inter 21 22 23 24 25 26 27 28 2 Most of the above-cited authorities speak in terms of the testimony of lay witnesses. The standards discussed in these authorities, however, appear equally applicable to written statements submitted by lay witnesses. Hendrix v. Astrue, 2010 WL 60959, at *10 (C.D. Cal. Jan. 4, 2010); accord Hughes v. Commissioner, 403 Fed. App x 218, 221 (9th Cir. 2010) (applying to written statements by lay witnesses the same standards applicable to testimony by lay witnesses); cf. Schneider v. Commissioner, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ should have considered letters submitted by claimant s friends and exemployers in evaluating severity of claimant s functional limitations). 8 1 alia, that the ALJ properly rejected these witnesses evidence for the 2 same reasons the ALJ discounted Plaintiff s credibility (Defendant s 3 Motion at 9). 4 previously discussed, the ALJ failed to state legally sufficient 5 reasons for discounting Plaintiff s credibility. 6 Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) 7 (ALJ s failure to account for a son s potentially corroborating 8 testimony held to be material error [b]ecause the ALJ did not make a 9 legally sufficient adverse credibility finding with regard to [the 10 Defendant s argument must fail if only because, as See Robbins v. claimant s] own testimony ). 11 12 Furthermore, when the ALJ did mention the testimony of 13 Plaintiff s son, the ALJ materially mischaracterized the testimony. 14 The ALJ stated that Plaintiff s son testified Plaintiff is able to 15 shop for groceries, and do the laundry (A.R. 14). 16 discussed, Plaintiff s son gave no such testimony and, in fact, 17 testified that he did the laundry and he usually did the grocery 18 shopping (A.R. 34). 19 evidence constitutes an additional material error. 20 Commissioner, 166 F.3d at 1297. As previously The ALJ s inaccurate characterization of the See Regennitter v. 21 22 III. Remand is Appropriate. 23 24 Because the circumstances of the case suggest that further 25 administrative review could remedy the ALJ s errors, remand is 26 appropriate. 27 Connett, 340 F.3d at 876 (remand is an option where the ALJ fails to 28 state sufficient reasons for rejecting a claimant s excess symptom McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 9 1 testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) 2 (appearing, confusingly, to cite Connett for the proposition that 3 [w]hen an ALJ s reasons for rejecting the claimant s testimony are 4 legally insufficient and it is clear from the record that the ALJ 5 would be required to determine the claimant disabled if he had 6 credited the claimant s testimony, we remand for a calculation of 7 benefits ) (quotations omitted); see also Vasquez v. Astrue, 572 F.3d 8 586, 600-01 (9th Cir. 2009) (agreeing that a court need not credit as 9 true improperly rejected claimant testimony where there are 10 outstanding issues that must be resolved before a proper disability 11 determination can be made); see generally INS v. Ventura, 537 U.S. 12, 12 16 (2002) (upon reversal of an administrative determination, the 13 proper course is remand for additional agency investigation or 14 explanation, except in rare circumstances). 15 16 CONCLUSION 17 18 For all of the foregoing reasons, Plaintiff s and Defendant s 19 motions for summary judgment are denied and this matter is remanded 20 for further administrative action consistent with this Opinion. 21 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 24 DATED: December 9, 2013. 25 26 27 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 28 10
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