Joanne Jaramillo Garcia v. Carolyn W Colvin, No. 5:2014cv02194 - Document 17 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Joanne Jaramillo Garcia filed this action on October 31, 2014. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 9, 10.) On June 8, 2015, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court reverses the decision of the Commissioner and remands for further proceedings. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for reconsideration of the residual functional capacity assessment. (See Order for details.) (mp)
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Joanne Jaramillo Garcia v. Carolyn W Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOANNE JARAMILLO GARCIA, 12 13 14 15 16 17 Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. EDCV 14-2194 AGR MEMORANDUM OPINION AND ORDER Plaintiff Joanne Jaramillo Garcia filed this action on October 31, 2014. Pursuant 18 to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. 19 (Dkt. Nos. 9, 10.) On June 8, 2015, the parties filed a Joint Stipulation (“JS”) that 20 addressed the disputed issues. The court has taken the matter under submission 21 without oral argument. 22 23 Having reviewed the entire file, the court reverses the decision of the Commissioner and remands for further proceedings. 24 25 26 27 28 Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On May 17 and 18, 2011, respectively, Garcia filed applications for disability 4 insurance benefits and supplemental security income, and alleged an onset date of July 5 17, 2010. Administrative Record (“AR”) 15, 159-67. The applications were denied 6 initially and on reconsideration. AR 15, 77-78, 90. Garcia requested a hearing before 7 an Administrative Law Judge (“ALJ”). AR 101. On December 3, 2012, the ALJ 8 conducted a hearing at which Garcia and a vocational expert testified. AR 29-60. On 9 January 7, 2013, the ALJ issued a decision denying benefits. AR 12-25. On August 29, 10 2014, the Appeals Council denied the request for review. AR 1-5. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 9 2d 333 (2003) (citation and quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Garcia met the insured status requirements through 12 September 30, 2014. AR 17. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 14 the ALJ found that Garcia had the severe impairments of degenerative disc disease; 15 diabetes; hypertension with a history of coronary artery disease, status post triple 16 bypass surgery in 2007; asthma; and obesity. AR 17. Her impairments did not meet or 17 equal a listing. AR 18. She had the residual functional capacity (“RFC”) to perform light 18 work, except she could lift and carry 20 pounds occasionally and 10 pounds frequently, 19 sit up to six hours out of an eight-hour workday, stand and walk for two hours out of an 20 eight-hour workday, push and pull as much as she could carry and lift, frequently climb 21 ramps and stairs, and frequently stoop. She could never climb, balance, kneel, crouch, 22 or crawl; and could not work on uneven terrain, climb ladders, work at heights, work 23 with machinery, or work where there were fumes, odors, and gases. AR 19. 24 25 26 27 28 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 The ALJ found that Garcia was unable to perform past relevant work, but there 1 2 were jobs that existed in significant numbers in the national economy that she could 3 perform, such as inspector, hand; finisher, trimmer; and toy assembler. AR 24. 4 C. Residual Functional Capacity 5 Garcia contends that the ALJ erred in his RFC determination by finding her 6 capable of frequently climbing ramps and stairs, frequently stooping, and pushing and 7 pulling as much as she could carry and lift. The RFC determination measures the claimant’s capacity to engage in basic 8 9 work activities. Bowen v. New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 10 462 (1986). The RFC is a determination of “the most [an individual] can still do despite 11 [his or her] limitations.” 20 C.F.R. § 404.1545(a). It is an administrative finding, not a 12 medical opinion. 20 C.F.R. § 404.1527(e)(2). The RFC takes into account both 13 exertional limitations and non-exertional limitations. The RFC must contain “a narrative 14 discussion describing how the evidence supports each conclusion, citing specific 15 medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, 16 observations).” Social Security Ruling (“SSR”) 96-8p.2 The ALJ must explain how he or 17 she resolved material inconsistencies or ambiguities in the record. Id. “When there is 18 conflicting medical evidence, the Secretary must determine credibility and resolve the 19 conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation omitted). 20 The Commissioner acknowledges that the RFC assessment is internally 21 contradictory. JS 9. On the one hand, Garcia “can never climb, balance, kneel, crouch, 22 or crawl. She cannot work on uneven terrain; she cannot climb ladders; and she cannot 23 work at heights.” AR 19. On the other hand, Garcia “can frequently climb ramps and 24 stairs. She can frequently stoop.” Id. 25 26 27 28 2 Social Security rulings do not have the force of law. However, they “constitute Social Security Administration interpretations of the statute it administers and of its own regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 4 Contrary to the Commissioner’s argument, the court cannot rewrite the RFC 1 2 assessment. The ALJ adopted the non-exertional limitations found by Dr. Alleyne, an 3 internal medicine consultative examiner. AR 22. On September 10, 2011, Dr. Alleyne 4 examined Garcia and found, with respect to non-exertional limitations, that she could 5 occasionally push and pull, and was precluded from climbing, balancing, kneeling, 6 crouching, crawling, walking on uneven terrain, climbing ladders and working at heights. 7 AR 22, 239. The ALJ also agreed with the assessment of Dr. Wahl, a State agency 8 review physician, who opined that Garcia could occasionally climb 9 ladders/ropes/scaffolds and frequently climb ramps/stairs, balance, stoop, kneel, crouch 10 and crawl.3 AR 23, 86. The ALJ stated that he “included greater restrictions” than Dr. 11 Wahl “in light of the claimant’s subjective complaints.” AR 23. In addition, the ALJ 12 asked the VE alternative hypotheticals that either precluded climbing, balancing, 13 kneeling, crouching or crawling (AR 57) or permitted occasional climbing of 14 ladders/scaffolds and frequent climbing of ramps/stairs, balancing, stooping, kneeling, 15 crouching and crawling (AR 56). 16 Remand is appropriate so that the ALJ may clarify the RFC assessment. 17 D. 18 Garcia argues that the ALJ erred in his credibility determination because he failed Credibility 19 to properly consider her alleged visual limitations and her need to lie down frequently. 20 “To determine whether a claimant’s testimony regarding subjective pain or 21 symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. 22 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, “the ALJ must determine 23 whether the claimant has presented objective medical evidence of an underlying 24 impairment ‘which could reasonably be expected to produce the pain or other 25 26 27 28 3 Dr. Wahl appears to claim that Dr. Alleyne changed his RFC opinion to “push/pull frequently and postural movements to frequent with climb ladders occasionally.” AR 87. However, Dr. Alleyne did not submit any changes to his opinion and the ALJ did not cite or rely on this portion of Dr. Wahl’s opinion. 5 1 symptoms alleged.’” Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) 2 (en banc)). 3 Second, when an ALJ concludes that a claimant is not malingering and has 4 satisfied the first step, “the ALJ may ‘reject the claimant’s testimony about the severity 5 of her symptoms only by offering specific, clear and convincing reasons for doing so.’” 6 Brown-Hunter v. Colvin, 2015 U.S. App. LEXIS 13560, *14 (9th Cir. Aug. 4, 2015) 7 (citation omitted); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). “A finding 8 that a claimant’s testimony is not credible ‘must be sufficiently specific to allow a 9 reviewing court to conclude the adjudicator rejected the claimant’s testimony on 10 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 11 pain.’” Brown-Hunter, 2015 U.S. App. LEXIS 13560, *14-*15. “‘General findings are 12 insufficient; rather, the ALJ must identify what testimony is not credible and what 13 evidence undermines the claimant’s complaints.’” Id. at *15 (citation omitted). 14 In weighing credibility, the ALJ may consider factors including: the nature, 15 location, onset, duration, frequency, radiation, and intensity of any pain; precipitating 16 and aggravating factors (e.g., movement, activity, environmental conditions); type, 17 dosage, effectiveness, and adverse side effects of any pain medication; treatment, 18 other than medication, for relief of pain; functional restrictions; the claimant’s daily 19 activities; and “ordinary techniques of credibility evaluation.” Bunnell, 947 F.2d at 346 20 (citing SSR 88-13) (quotation marks omitted). The ALJ may consider: (a) 21 inconsistencies or discrepancies in a claimant’s statements; (b) inconsistencies 22 between a claimant’s statements and activities; (c) exaggerated complaints; and (d) an 23 unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 24 The ALJ found that Garcia’s medically determinable impairments could 25 reasonably be expected to cause some of the alleged symptoms, but that her 26 statements concerning the intensity, persistence and limiting effects of her symptoms 27 were “not entirely credible.” AR 20. The ALJ primarily relied on three reasons: (1) the 28 6 1 objective medical evidence did not support Garcia’s claims of disabling pain and 2 limitations; (2) Garcia allowed her medications to run out for days; and (3) Garcia 3 received unemployment benefits after the alleged onset date. AR 19-23. 1. Objective Evidence 4 5 Although lack of objective medical evidence supporting the degree of limitation 6 “cannot form the sole basis for discounting pain testimony,” it is a factor that an ALJ 7 may consider in assessing credibility. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 8 2005). The ALJ thoroughly discussed the medical evidence in the record, and found 9 that the objective clinical and diagnostic findings did not support Garcia’s allegations. 10 AR 20-22. Regarding Garcia’s alleged visual limitations, the ALJ found no objective 11 evidence of diabetic retinopathy, and Garcia cites none. AR 21. Dr. Alleyne noted that 12 Garcia had no photophobia, diplopia, blurred vision or discharge. AR 236. Her pupils 13 were equal, round and reactive to light and accommodation; her extraocular muscles 14 were intact; her fundi were benign, without papilledema, hemorrhages or exudates; and 15 there were no visual field deficits or scleral icterus. AR 237. On September 7, 2012, 16 Garcia had an initial visit at the County of San Bernardino Department of Public Health 17 for back pain. AR 317. At that time, her pupils were noted to be PERLA [equal and 18 reactive to light and accommodation], but she was given a referral for an ophthalmology 19 consult due to diabetes. AR 317-18. The record does not include an ophthalmology 20 follow-up. 21 Garcia cites no objective evidence to support her allegation that she must lie 22 down frequently. The ALJ found that the objective evidence did not support the degree 23 of alleged limitation from Garcia’s back, hip, leg and foot pain. AR 20-23. The ALJ 24 noted that Garcia had a history of back pain with infrequent treatment and no persistent 25 signs of radiculopathy or chronic neurological deficits. AR 21. The ALJ acknowledged 26 the presence of degenerative changes at L5-S1, and narrowing at L4-L5, but found no 27 evidence of disc bulging, herniation, or any other lesion warranting surgical intervention. 28 AR 21, 291, 303. The record did not show severe muscle weakness or nerve damage. 7 1 AR 21. The ALJ noted negative hip x-rays. AR 21, 312. Dr. Alleyne found that Garcia 2 had an antalgic gait; range of motion of the back was limited; straight leg raises were 3 positive at 10 degrees; her extremities had no clubbing, cyanosis, pedal edema, joint 4 effusions, warmth, swelling, crepitus, joint laxity, or pain on motion; her left hip was 5 tender to anterior palpation, and she had painful hip movements in all planes; and her 6 knees and ankles had a full range of motion. AR 22, 237-38. Dr. Alleyne found that 7 Garcia could perform a range of medium work, including walking and standing up to two 8 hours, and sitting up to six hours. AR 22, 238-39. 9 10 2. Medication Non-Compliance The ALJ found that Garcia “consistently” allowed her medications to run out, and 11 that “[h]er cavalier attitude toward obtaining medication refills suggests that [Garcia] 12 does not believe her condition is as severe as she has portrayed.” AR 22-23. 13 “[U]nexplained or inadequately explained failure to seek treatment or to follow a 14 prescribed course of treatment” is a relevant factor in weighing a plaintiff’s credibility. 15 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Treatment records indicate 16 numerous instances in which Garcia ran out of her medications. AR 240, 249, 262, 17 265, 279, 292, 309, 313, 325. Garcia testified that her medications were effective when 18 she took them. AR 39. The ALJ could reasonably interpret the evidence as showing 19 that Garcia was not compliant with her medications. 20 3. Unemployment Benefits 21 The ALJ found that Garcia received unemployment benefits, “which indicate[s] 22 that [Garcia] has certified herself as ready and able to work.” AR 23. “Continued 23 receipt of unemployment benefits does cast doubt on a claim of disability, as it shows 24 that an applicant holds himself out as capable of working.” Ghanim v. Colvin, 763 F.3d 25 1154, 1165 (9th Cir. 2014). Garcia testified at the hearing in December 2012 that she 26 had received unemployment benefits since 2010. AR 35. 27 The ALJ’s finding on credibility is supported by substantial evidence. “If the ALJ’s 28 credibility finding is supported by substantial evidence in the record, we may not engage 8 1 in second-guessing.” Thomas, 278 F.3d at 959 (citing Morgan v. Comm’r of Soc. Sec. 2 Admin., 169 F.3d 595, 600 (9th Cir. 1999)). The ALJ did not err. 3 IV. 4 ORDER 5 6 7 8 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for reconsideration of the residual functional capacity assessment. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel. 9 10 11 DATED: October 1, 2015 _______________________________ ALICIA G. ROSENBERG United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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