Robert G Brown v. Carolyn W Colvin, No. 5:2014cv00101 - Document 20 (C.D. Cal. 2014)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Charles F. Eick, re: Cross MOTION for Summary Judgment 19 , MOTION for Summary Judgment or Remand 15 . IT ISHEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. SEE ORDER FOR DETAILS. (dml)

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Robert G Brown v. Carolyn W Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBERT G. BROWN, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ) ___________________________________) NO. ED CV 14-101-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on January 15, 2014, seeking review 26 of the Commissioner s denial of disability benefits. The parties 27 filed a consent to proceed before a United States Magistrate Judge on 28 March 1, 2014. Plaintiff filed a motion for summary judgment on Dockets.Justia.com 1 August 1, 2014. Defendant filed a motion for summary judgment on 2 October 2, 2014. 3 without oral argument. The Court has taken the motions under submission See L.R. 7-15; Order, filed January 27, 2014. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff, a former fire alarm installer, asserts disability 8 since July 17, 2009, based primarily on alleged ankylosing 9 spondylitis1 (Administrative Record ( A.R. ) 38, 54, 124-25, 145-46). 10 Plaintiff testified, I have chronic pain throughout my back; lower 11 back and upper back pain; my neck (A.R. 40). 12 could move his neck only a few degrees and also claimed his back is 13 severely restricted in its range of motion (A.R. 40-41). 14 reportedly is unable to use his hands to perform tasks for any length 15 of time (A.R. 43). 16 down during the day, and is constantly out of breath (A.R. 45-47). 17 Plaintiff allegedly suffers these disabling symptoms despite having 18 received medical treatments including injections with Humira, 19 injections with steroids, injections with Toradol, and the use of 20 prescription muscle relaxants and narcotic pain medication such as 21 Vicodin (A.R. 161, 257-58, 297, 300, 304, 347). Plaintiff claimed he Plaintiff Plaintiff reportedly is often fatigued, must lie 22 23 24 25 26 27 28 1 Ankylosing spondylitis is a progressive, degenerative disease of the spine and joints which destroys cartilage and causes bones to fuse together. Liebig-Grigsby v. United States, 2003 WL 1090272, at *11 (N.D. Ill. 2003); see also Campbell v. Astrue, 2011 WL 90312, at *3 n.10 (E.D. Cal. Jan. 7, 2011) ( Ankylosing spondylitis is a long-term disease that causes inflammation of the joints between the spinal bones, and the joints between the spine and pelvis. It eventually causes the affected spinal bones to join together ) (citations and quotations omitted). 2 1 An Administrative Law Judge ( ALJ ) found Plaintiff has severe 2 ankylosing spondylosis which renders Plaintiff unable to perform 3 any past relevant work (A.R. 13, 17). 4 that Plaintiff retains the residual functional capacity to perform 5 certain medium work, including the jobs of kitchen helper and 6 assembler (A.R. 15-19). The ALJ also found, however, 7 8 In deeming Plaintiff not disabled, the ALJ determined that 9 Plaintiff s testimony regarding his pain and functional limitations 10 was less than fully credible (A.R. 16-17). The ALJ stated only two 11 reasons for this credibility determination. According to the ALJ, 12 (1) Plaintiff s allegations of pain severity and functional 13 limitations are greater than expected in light of the objective 14 [medical] evidence of record (A.R. 17); and (2) Although the 15 claimant has received treatment for the allegedly disabling 16 impairment, that treatment has been essentially routine and/or 17 conservative in nature. 18 undergone [sic] aggressive treatment such as surgery for his back and 19 neck pain. 20 intervention suggests the claimant s symptoms and limitations were not 21 as severe as he alleged (A.R. 16-17). 22 review (A.R. 1-3). There is no record of hospital admission or The lack of more aggressive treatment or surgical The Appeals Council denied 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. section 405(g), this Court reviews the 27 Administration s decision to determine if: (1) the Administration s 28 findings are supported by substantial evidence; and (2) the 3 1 Administration used correct legal standards. See Carmickle v. 2 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 3 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 4 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 5 Substantial evidence is such relevant evidence as a reasonable mind 6 might accept as adequate to support a conclusion. 7 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 8 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. 9 10 DISCUSSION 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 also Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney 19 v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988).2 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 2 In the absence of a finding of malingering, or at least evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); 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 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 impairment could reasonably be expected to cause the 14 alleged symptoms. . . . (A.R. 17). 15 credibility of Plaintiff s testimony regarding the severity of the 16 symptoms for two stated reasons: (1) the objective [medical] evidence 17 of record ; and (2) the essentially routine and/or conservative 18 nature of Plaintiff s medical treatment (A.R. 16-17). 19 reasons do not suffice on the present record. The ALJ discounted the These stated 20 21 A lack of objective medical evidence to support the alleged 22 severity of a claimant s symptomatology can be a factor in rejecting 23 a claimant s credibility, but cannot form the sole basis. 24 v. Barnhart, 400 F.3d 676, 681 (2005). 25 supporting objective medical evidence cannot by itself justify the 26 ALJ s credibility determination in the present case. 27 /// 28 /// 5 See Burch Therefore, the alleged lack of See id. 1 A conservative course of treatment may sometimes properly 2 discredit a claimant s allegations of disabling symptoms. See, e.g., 3 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied, 4 552 U.S. 1141 (2008) (treatment with over-the-counter pain medication 5 is conservative treatment sufficient to discredit a claimant s 6 testimony regarding allegedly disabling pain). 7 however, it is uncertain whether the ALJ accurately characterized 8 Plaintiff s treatment as essentially routine and/or conservative in 9 nature. In the present case, See, e.g., Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. 10 Cal. July 18, 2014) ( there is evidence in the record that Plaintiff 11 has been prescribed narcotic pain medications, such as Vicodin . . . 12 It would be difficult to fault Plaintiff for overly conservative 13 treatment when he has been prescribed strong narcotic pain 14 medications ); Brunkalla-Saspa v. Colvin, 2014 WL 1095958, at *1 (C.D. 15 Cal. March 18, 2014) ( [T]he ALJ found that Plaintiff had been 16 conservatively treated with Vicodin. . . . 17 strong medication to alleviate pain ) (citations and quotations 18 omitted); Harrison v. Astrue, 2012 WL 527419, at *7 (D. Or. Feb. 16, 19 2012) (nerve blocks and multiple steroid injections certainly not 20 conservative ); but see Nash v. Astrue, 2012 WL 6700582, at *9 (C.D. 21 Cal. Dec. 21, 2012) (declining to second guess the ALJ s 22 characterization as routine conservative treatment the prescribing 23 of pain medicine, muscle relaxers and Humira injections for ankylosing 24 spondylitis). But Vicodin qualifies as 25 26 Regardless of the proper characterization of the treatment 27 Plaintiff has received, the critical question here is whether 28 substantial evidence supports the ALJ s inference that [t]he lack of 6 1 more aggressive treatment or surgical intervention suggests 2 [Plaintiff s] symptoms and limitations were not as severe as he 3 alleged (A.R. 17). 4 answered in the negative. On the present record, this question must be 5 6 The record does not contain any medical evidence that surgical 7 intervention or other aggressive treatment would be an appropriate 8 or effective response to Plaintiff s claimed symptomatology. 9 Plaintiff s treating rheumatologist, who opined that Plaintiff is 10 disabled, has not prescribed surgery or any other treatment Plaintiff 11 has failed to undergo (A.R. 255-56, 348-52). 12 physician. 13 non-conservative treatment options where none exist. 14 Colvin, 2014 WL 4220909, at *11 (D. Or. Aug. 25, 2014); see Condon v. 15 Astrue, 780 F. Supp. 2d 831, 837 (N.D. Iowa 2011) (reasoning that the 16 absence from a lengthy medical record of any recommendation for more 17 aggressive treatment would seem to suggest no more aggressive 18 treatment options exist ). Neither has any other A claimant cannot be discredited for failing to pursue Devee v. 19 20 Defendant s motion cites an internet article while arguing that 21 total joint replacement can sometimes be a treatment option for 22 ankylosing spondylitis (Defendant s motion at 9 n.4). 23 article, which is not part of the administrative record, indicates 24 that [t]he most commonly replaced joints are the knee and hip. 25 www.niams.nih.gov/Health_Info/Ankylosing_spondylitis/. 26 complains of shortness of breath and restrictions in the movement of 27 his neck, back and hands. 28 not be a treatment option for any of these claimed symptoms. The cited See Plaintiff Total joint replacement presumably would 7 Even if 1 this Court could consider evidence outside the administrative record 2 (which it cannot),3 the cited article provides no substantial evidence 3 that surgery for [Plaintiff s] back and neck pain or other more 4 aggressive treatment would be an appropriate or effective medical 5 response to Plaintiff s claimed symptoms (A.R. 16-17). 6 quoted speculation of the ALJ cannot substitute for medical evidence, 7 and the speculation cannot support the inference on which the validity 8 of the ALJ s credibility determination depends. 9 Weinberger, 522 F.2d at 1156 (an ALJ who is not qualified as a medical The above- See Day v. 10 expert cannot make his own exploration and assessment as to [the] 11 claimant s physical condition ); see also Rohan v. Chater, 98 F.3d 12 966, 970-71 (7th Cir. 1996) (ALJ may not rely on his or her own lay 13 opinion regarding medical matters); Ferguson v. Schweiker, 765 F.2d 14 31, 37 (3d Cir. 1995) (same); cf. Rudder v. Colvin, 2014 WL 3773565, 15 at *12 (N.D. Ill. July 30, 2014) ( The ALJ may be correct that 16 disabling limitations from multiple sclerosis would result in more 17 frequent treatment or need for medication. 18 include evidence to support such a conclusion in his opinion because 19 he is not qualified, on his own, to make such determinations ) 20 (citations and quotations omitted). However, the ALJ must 21 22 23 In sum, Plaintiff s failure to receive more aggressive treatment or surgical intervention is an insufficient reason for discounting 24 25 26 27 28 3 Absent circumstances justifying a sentence six remand, the District Court is confined to a review of the evidence contained within the administrative record. See 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 461-63 (9th Cir. 2001); cf. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ should not go outside the record to consult medical textbooks). 8 1 Plaintiff s credibility. See Matamoros v. Colvin, 2014 WL 1682062, at 2 *4 (C.D. Cal. April 28, 2014) ( The ALJ cannot fault [the claimant] 3 for failing to pursue non-conservative treatment options if none 4 exist ) (citation omitted); Clark v. Astrue, 2013 WL 254065, at *12 5 (D. Ariz. Jan. 23, 2013) ( There is no evidence in the record that 6 Plaintiff was prescribed a TENS unit, cane, walker, wheelchair, or 7 directed to use a heating pad and thus the ALJ s speculation that 8 Plaintiff should have used those or other treatment modalities is 9 not a clear and convincing reason for discounting her credibility ); 10 Townson v. Astrue, 2010 WL 2077187, at *15 (D. Kan. 2010) ( [O]n this 11 record, it is speculative for the ALJ to assume that if claimant were 12 as disabled as he claims, his doctors would have ordered more 13 aggressive treatment. . . . 14 doctors disbelieved plaintiff s pain complaints, when the record does 15 not show that they did ) (citations and quotations omitted). This comment assumes that plaintiff s 16 17 Because the circumstances of this case suggest that further 18 administrative review could remedy the ALJ s errors, remand is 19 appropriate. 20 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 21 (remand is an option where the ALJ fails to state sufficient reasons 22 for rejecting a claimant s excess symptom testimony); but see Orn v. 23 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (citing Connett for the 24 proposition that [w]hen an ALJ s reasons for rejecting the claimant s 25 testimony are legally insufficient and it is clear from the record 26 that the ALJ would be required to determine the claimant disabled if 27 he had credited the claimant s testimony, we remand for a calculation 28 of benefits ) (quotations omitted); see also Ghanim v. Colvin, 763 McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 9 1 F.3d at 1166 (remanding for further proceedings where the ALJ failed 2 to state sufficient reasons for deeming a claimant s testimony not 3 credible); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 4 (court may remand for further proceedings, even though all conditions 5 of the credit-as-true rule are satisfied, [when] an evaluation of the 6 record as a whole creates serious doubt that a claimant is, in fact, 7 disabled ); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a 8 court need not credit as true improperly rejected claimant testimony 9 where there are outstanding issues that must be resolved before a 10 proper disability determination can be made); see generally INS v. 11 Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 12 determination, the proper course is remand for additional agency 13 investigation or explanation, except in rare circumstances).4 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 4 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff s testimony were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 10 1 CONCLUSION 2 3 For all of the foregoing reasons,5 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 20, 2014. 10 11 _____________/S/_______________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. [E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled. See Garrison v. Colvin, 759 F.3d at 1021. 11

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