Amy Lyn Smith v. Carolyn W Colvin, No. 5:2014cv02473 - Document 23 (C.D. Cal. 2015)
Court Description: JUDGMENT by Magistrate Judge Charles F. Eick. It is Hereby Adjudged that the decision of the Commissioner of the Social Security Administration is reversed in part and the matter is remanded for further administrative action consistent with the Memorandum Opinion and Order of Remand filed concurrently herewith. (MD JS-6, Case Terminated). (sp)
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Amy Lyn Smith v. Carolyn W Colvin Doc. 23 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 AMY LYN SMITH, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 14-2473-E JUDGMENT 18 19 IT IS HEREBY ADJUDGED that the decision of the Commissioner 20 of the Social Security Administration is reversed in part and the 21 matter is remanded for further administrative action consistent with 22 the Memorandum Opinion and Order of Remand filed concurrently 23 herewith. 24 25 DATED: October 7, 2015. 26 27 28 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE Dockets.Justia.com 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 AMY LYN SMITH, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ) ___________________________________) NO. ED CV 14-2473-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 December 2, 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 February 15, 2015. Plaintiff filed a motion for summary judgment on 1 July 13, 2015. Defendant filed a motion for summary judgment on 2 September 11, 2015. 3 without oral argument. 4 2014. The Court has taken the motions under submission See L.R. 7-15; “Order,” filed December 8, 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff alleges disability since September 12, 2010, based on degenerative disk disease, a herniated disk, and sciatica 10 (Administrative Record (“A.R.”) 161-73, 193, 198). An Administrative 11 Law Judge (“ALJ”) found Plaintiff has severe degenerative disk disease 12 of the lumbar spine with multi-level neural foramina stenosis, facet 13 joint dysfunction with spondylosis, post-laminectomy syndrome, and 14 parasthesia in the right upper and lower extremities, which prevent 15 Plaintiff from performing her past relevant work (A.R. 28, 30 16 (adopting diagnoses at A.R. 237, 245, and vocational expert testimony 17 at A.R. 69)). 18 residual functional capacity to perform a limited range of light work, 19 including the light jobs of electronics worker and production 20 solderer, and the sedentary jobs of addresser and tube operator (A.R. 21 28-31 (relying on non-examining State agency physician residual 22 functional capacity assessments at A.R. 76-81, 86-91, 95-100, and 23 vocational expert testimony at 69-70)).1 The ALJ also found, however, that Plaintiff retains the 24 25 In finding Plaintiff not disabled, the ALJ determined that 26 Plaintiff’s testimony regarding her pain and functional limitations 27 1 28 There are no opinions from examining physicians concerning Plaintiff’s residual functional capacity. 2 1 was less than fully credible, based on the objective medical evidence 2 and the allegedly “conservative” nature of Plaintiff’s medical 3 treatment (A.R. 29-30). 4 medical records but denied review (A.R. 14-19). The Appeals Council considered additional 5 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 10 findings are supported by substantial evidence; and (2) the 11 Administration used correct legal standards. 12 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 13 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 14 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 15 Substantial evidence is “such relevant evidence as a reasonable mind 16 might accept as adequate to support a conclusion.” 17 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 18 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).2 19 claimant carries the burden of proving a disability. 20 disability justifies a denial of benefits.” See Carmickle v. Richardson v. “The Failure to prove Ukolov v. Barnhart, 420 21 22 23 24 25 26 2 If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner’s decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion. 27 28 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted). 3 1 F.3d 1002, 1004 (9th Cir. 2005) (citations omitted). 2 3 Where, as here, the Appeals Council considered additional 4 evidence but denied review, the additional evidence becomes part of 5 the record for purposes of the Court’s analysis. 6 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 7 new evidence in deciding whether to review a decision of the ALJ, that 8 evidence becomes part of the administrative record, which the district 9 court must consider when reviewing the Commissioner’s final decision See Brewes v. 10 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 11 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 12 1228, 1232 (2011) (courts may consider evidence presented for the 13 first time to the Appeals Council “to determine whether, in light of 14 the record as a whole, the ALJ’s decision was supported by substantial 15 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 16 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 17 information and it became part of the record we are required to review 18 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 19 20 DISCUSSION 21 22 When, as in the present case, an ALJ finds that a claimant’s 23 medically determinable impairments reasonably could be expected to 24 cause the symptoms alleged, the ALJ may not discount the claimant’s 25 testimony regarding the severity of the symptoms without making 26 “specific, cogent” findings, supported in the record, to justify 27 discounting such testimony. 28 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); See Berry v. Astrue, 622 F.3d 1228, 1234 4 1 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 2 (indicating that ALJ must state “specific, clear and convincing” 3 reasons to reject a claimant’s testimony where there is no evidence of 4 malingering).3 5 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ’s 6 credibility findings “must be sufficiently specific to allow a 7 reviewing court to conclude the ALJ rejected the claimant’s testimony 8 on permissible grounds and did not arbitrarily discredit the 9 claimant’s testimony”) (internal citations and quotations omitted); Generalized, conclusory findings do not suffice. See 10 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 11 must “specifically identify the testimony [the ALJ] finds not to be 12 credible and must explain what evidence undermines the testimony”); 13 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 14 which symptom testimony is not credible and what facts in the record 15 lead to that conclusion.”); see also Social Security Ruling (“SSR”) 16 96-7p. 17 /// 18 /// 19 /// 20 21 22 23 24 25 26 27 28 3 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier 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. 5 1 I. Plaintiff’s Testimony 2 3 Plaintiff testified that chronic lower back pain prevents her 4 from working (A.R. 47, 58). Plaintiff previously worked at Wendy’s 5 but reportedly had to quit because she could not do the standing and 6 the cleanup required for that job (A.R. 57-58).4 7 she could not sit for hours at a time because prolonged sitting causes 8 her back to cramp up (A.R. 58, 62).5 She assertedly needs the option 9 to sit and stand at will (A.R. 58). Plaintiff said that she has daily Plaintiff also said 10 right side pain that sometimes causes swelling in her right hand and 11 loss of strength, or numbness in her right foot, as well as neck pain 12 (A.R. 59, 61-62, 66; but see A.R. 199, 226 (reporting left side pain 13 and numbness)). 14 than five pounds; (2) sit for no longer than 30 minutes at a time 15 before having to stand for 15 minutes to relieve her pain; and 16 (3) stand for 40 minutes in one place before having to sit for 20 to 17 30 minutes to relieve her pain (A.R. 64-65). 18 four to five bad days a month when she stays in bed (A.R. 66). 19 also stated that her pain medications make her drowsy and “feel 20 /// 21 /// 22 /// Plaintiff said she thought she could: (1) lift less Plaintiff said she has 23 4 24 25 26 27 28 Although Plaintiff said she stopped working in 2010, records reflected self-employment earnings of approximately $6,900 in 2011 (A.R. 56-57; see also A.R. 178, 181, 183, 185, 187). Plaintiff said these records must be mistaken; she testified that she had not filed for self-employment (A.R. 57). 5 In a report dated June 26, 2012, a field office examiner observed that Plaintiff appeared to have difficulty standing, walking, and sitting (A.R. 202-04). 6 She 1 dumbfounded” (A.R. 64; see also A.R. 226).6 2 3 Plaintiff described her treatment to date as taking pain 4 medications and sometimes receiving shots. 5 “supposed to have been” receiving cortisone injections and physical 6 therapy but such treatments had not been started as of the date of the 7 hearing. 8 1990 (A.R. 59-60 (describing the surgery as a “defusion” where the 9 disk was herniated)). See A.R. 58-60. She reportedly was She had surgery for a herniated disk in Plaintiff claimed that she did not have further 10 treatment because her doctors did not provide sufficient paperwork for 11 further treatment (A.R. 60). 12 being sworn, Plaintiff also said that her insurance was “stopped” and, 13 for a period of time, she lost her primary care physician, such that 14 all she could do for her condition was get pain pills (A.R. 42, 45). At the outset of the hearing, prior to 15 16 Plaintiff said that her pain medication sometimes does not work 17 to treat her pain, and that she takes hot baths or goes to the 18 emergency room for shots (A.R. 60-62). 19 taking Norco, Robaxin and Motrin, and also was using Bengay (A.R. 63, 20 67). 21 /// 22 /// 23 /// 24 /// Plaintiff reportedly was 25 26 27 28 6 In a Disability Report - Appeal form, Plaintiff reported that she had depression beginning in March of 2012 (A.R. 205). In an “Exertion Questionnaire” dated May 26, 2012, Plaintiff reported that she rests or naps every three to four hours during the day (A.R. 201). 7 1 II. Summary of the Medical Record 2 3 There are relatively few medical records, and the records appear 4 incomplete. See A.R. 235-68. All the treatment records provided are 5 from Arrowhead Regional Medical Center (id.). 6 7 On January 28, 2011, Plaintiff presented for a medication refill, 8 complaining of lower back pain (A.R. 239-40). She was given Norco and 9 Robaxin and was told to return to the clinic in one to two months or 10 as needed (A.R. 239).7 11 complaints of lower back pain and right upper and lower extremity 12 numbness (A.R. 237). 13 although Plaintiff states that she has chronic back pain, Plaintiff 14 had “not been seen in this clinic for many, many months” (A.R. 237). 15 Plaintiff reported that her pain medications were not working and 16 asked for a referral for pain management (A.R. 237).8 17 appeared to be in “moderate distress” related to her back pain, unable 18 to sit still in her chair and alternated from seated to standing 19 position throughout her visit (A.R. 237). Plaintiff returned on September 19, 2011, with Her examining nurse practitioner noted that Plaintiff However, Plaintiff 20 21 7 22 23 24 25 26 27 28 The treatment provider’s prescription notes indicate that Plaintiff was given one month’s supply of Norco and Robaxin with two refills. See A.R. 239 (noting Norco “TID 90(2)” and Robaxin “TID 90(2)”; TID means three times a day); see also Michael Bihari, M.D., Prescription Abbreviations: Understanding What Your Doctor Writes on a Prescription (Dec. 16, 2014) (available online at http://healthinsurance.about.com/od/ prescriptiondrugs/a/understanding_MD_Rx.htm (last visited Sept. 29, 2015). 8 It is not clear whether Plaintiff obtained any pain medication refills between her January and September 2011 office visits. 8 1 reportedly was able to get on and off the examination table with no 2 obvious difficulty (A.R. 237). 3 low back pain secondary to degenerative disk disease and right upper 4 and lower extremity parasthesia (A.R. 237). 5 Ultram, and Neurontin, and also was given an intramuscular Toradol 6 injection (A.R. 238).9 7 stretching and back exercises daily (A.R. 238). 8 practitioner indicated that Plaintiff would be referred for pain 9 management and that an electromyogram (“EMG”) of her right extremities 10 Plaintiff was diagnosed with chronic She was prescribed Norco, Further, Plaintiff was encouraged to do The nurse would be ordered (A.R. 238).10 11 12 On January 3, 2012, Plaintiff presented for a pap smear and it 13 was noted that Plaintiff had not been given an appointment for pain 14 management as discussed in her September visit (A.R. 235-36). 15 Plaintiff complained of worsening pain and right upper and lower 16 extremity numbness (A.R. 236). 17 Neurontin, and also was using a heating pad and Bengay for her pain 18 (A.R. 236). 19 day because the medications only help “at times” (A.R. 236). 20 reportedly had gone to the emergency room and had been given Baclofen 21 /// She was taking Norco, Ultram, and She reported that she does not take her medications every She 22 23 24 25 26 27 9 The treatment provider’s notes indicate that Plaintiff was given one month’s supply of Norco, Ultram, and Neurontin, with one refill. See A.R. 238 (noting Norco “one p.o. b.i.d. p.r.n., #60, with one refill”; Ultram “one p.o. t.i.d., #90, with one refill”; Neurontin “one p.o. q.h.s. for 1 day and then b.i.d. for 1 day and then t.i.d. is prescribed, #90, with one refill”; b.i.d. means twice a day). 10 28 There is no EMG study in the record, although the record mentions that one was done (A.R. 236). 9 1 and Norco for pain (A.R. 236).11 2 home but reported that she experiences pain afterwards (A.R. 236). She was trying some exercises at 3 4 On February 6, 2012, Plaintiff returned, complaining of daily low 5 back pain (A.R. 244). On examination, Plaintiff had positive straight 6 leg raising and pain with flexion and extension (A.R. 245). 7 was diagnosed with diffuse degenerative disk disease, multilevel 8 foraminal stenosis, mild to moderate facet joint dysfunction with 9 spondylosis without myelopathy, and post-laminectomy syndrome (A.R. Plaintiff 10 245). She was ordered to continue her medications per her primary 11 care provider, and the provider supposedly would follow up with 12 Plaintiff regarding a possible lumbar epidural steroid injection (A.R. 13 245). 14 15 On April 26, 2012, Plaintiff presented to the Spine Clinic for a 16 follow-up examination after having had a “draining lumbar spine wound 17 [and] dural tear [status post] [incision and drainage] [and] dural 18 repair” (A.R. 242-43).12 19 Plaintiff could be “d/c’d” [discontinued] for this illness and 20 encouraged ambulation (A.R. 242). 21 straight leg raising bilaterally (A.R. 242). Her treating provider indicated that Plaintiff reportedly had positive 22 23 24 Plaintiff presented to the Arrowhead emergency room on June 29, 2012, complaining of, inter alia, low back pain radiating to the left 25 26 27 11 There are no treatment notes from this reported emergency room visit. 12 28 There are no treatment notes in the record regarding the incision, drainage, and repair. 10 1 lower extremity (A.R. 251). She reportedly had negative straight leg 2 raising (A.R. 252). 3 Plaintiff returned to the emergency room on November 4, 2012, 4 complaining of left arm numbness (A.R. 248). 5 medication refill (A.R. 248). 6 lower back pain with suspected cervical radiculopathy and ordered her 7 medication refilled (A.R. 249). 8 to the emergency room, complaining of jaw pain and lumbar back pain 9 (A.R. 256). Her medications were refilled (A.R. 252). She requested a Her treating physician noted chronic On May 29, 2013, Plaintiff returned She was given Norco and Robaxin for her pain (A.R. 257). 10 A lumbar spine x-ray from this visit showed reversed lordotic lumbar 11 curvature, diskitis at L2-L3 (occurring since February 2009), and 12 advanced degenerative change at L5-S1 (stable and unchanged from 13 February 2009) (A.R. 258). 14 15 In addition to the above-described records, the Appeals Council 16 reviewed an MRI of Plaintiff’s lumbar spine dated October 22, 2013, 17 which showed multilevel degenerative disk disease and facet 18 hypertrophy causing multilevel neural foraminal narrowing (A.R. 261- 19 62). 20 21 III. Analysis 22 23 As indicated above, the ALJ discounted the credibility of 24 Plaintiff’s testimony regarding the severity of the symptoms based on 25 the objective medical record and the allegedly conservative nature of 26 Plaintiff’s medical treatment (A.R. 29-30). 27 (1) Plaintiff “has not had much treatment” and the treatment she has 28 received has been “conservative”; and (2) the objective medical 11 According to the ALJ, 1 record, inter alia: (a) did not show sensory deficits in Plaintiff’s 2 extremities “other than in a non-dermatomal pattern,” which the ALJ 3 asserted was “suggestive of exaggeration”; and (b) showed pain 4 medication refills (instead of forgoing refills), even though 5 Plaintiff claimed that the pain medication did not always help. 6 A.R. 29-30. 7 insufficient on the present record. See As discussed below, these stated reasons are legally 8 9 First, the fact (if it is a fact) that a claimant has not 10 received much treatment sometimes can be a sufficient reason for 11 finding the claimant not credible. 12 603 (9th Cir. 1989) (unexplained or inadequately explained failure to 13 seek or follow prescribed course of treatment can cast doubt on 14 claimant’s credibility); see also, e.g., Burch v. Barnhart, 400 F.3d 15 676, 681 (9th Cir. 2005) (lack of consistent treatment such as where 16 there was a three to four month gap in treatment properly considered 17 in discrediting claimant’s back pain testimony); Meanel v. Apfel, 172 18 F.3d 1111, 1114 (9th Cir. 1999) (in assessing the credibility of a 19 claimant’s pain testimony, the Administration properly may consider 20 the claimant’s failure to request treatment and failure to follow 21 treatment advice) (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th 22 Cir. 1991) (en banc)); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 23 Cir. 1995) (absence of treatment for back pain during half of the 24 alleged disability period, and evidence of only “conservative 25 treatment” when the claimant finally sought treatment, sufficient to 26 discount claimant’s testimony); Matthews v. Shalala, 10 F.3d 678, 27 679-80 (9th Cir. 1993) (permissible factors in assessing the 28 credibility of pain testimony include limited treatment and minimal See Fair v. Bowen, 885 F.2d 597, 12 1 use of medications). 2 3 [An] individual’s statements may be less credible if the 4 level or frequency of treatment is inconsistent with the 5 level of complaints, or if the medical reports or records 6 show that the individual is not following the treatment as 7 prescribed and there are no good reasons for this failure. 8 However, the adjudicator must not draw any inferences about 9 an individual’s symptoms and their functional effects from a 10 failure to seek or pursue regular medical treatment without 11 first considering any explanations that the individual may 12 provide, or other information in the case record, that may 13 explain infrequent or irregular medical visits or failure to 14 seek medical treatment. 15 16 SSR 96-7p at *7. 17 “binding on ALJs.” 18 Social Security rulings such as SSR 96-7p are Cir. 1990). Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th 19 20 In the present case, Plaintiff said that she did not seek more 21 treatment due to a lack of insurance for a period of time and a lack 22 of approval for further treatment (A.R. 42, 45, 58-61). 23 that she did not have a primary doctor for part of the time period, 24 and did want to come in just for pain medication since the 25 /// 26 /// 27 /// 28 /// 13 She stated 1 medication did not always work for her (A.R. 45, 60).13 2 not mention any of these explanatory statements in his decision, 3 perhaps implicitly disbelieving the statements while citing 4 Plaintiff’s lack of treatment as a reason to discount her credibility. 5 See A.R. 29-30. The ALJ did 6 7 The ALJ erred by relying, at least in part, on Plaintiff’s 8 alleged lack of treatment without expressly considering Plaintiff’s 9 proffered explanation regarding why she did not receive more 10 treatment. See SSR 96-7p; Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 11 2007) (“Orn’s failure to receive medical treatment during the period 12 that he had no medical insurance cannot support an adverse credibility 13 finding”); Jesus v. Colvin, 2015 WL 4999501, at *8 (N.D. Cal. Aug. 20, 14 2015) (“the Ninth Circuit has consistently held that when a claimant 15 suffers from financial hardships, a failure to obtain treatment is not 16 a sufficient reason to deny benefits”; citing Orn); Oliverio v. 17 Colvin, 2015 WL 1894299, at *5 & n.6 (C.D. Cal. Apr. 27, 2015) 18 (claimant could not be faulted for failing to attend more counseling 19 sessions where her insurance did not cover them; citing Orn); Fisher 20 v. Colvin, 2015 WL 1442064, at *17 (E.D. Cal. Feb. 20, 2015) (ALJ 21 22 23 24 25 26 27 28 13 The record reflects that Plaintiff’s providers referred Plaintiff for additional treatment or discussed with Plaintiff “possible” additional treatment (i.e., pain management, epidural injections) (A.R. 235-36, 238, 245), and that Plaintiff complained in one visit that her pain management referral had not resulted in an appointment (A.R. 235). The record also reflects that Plaintiff was “strongly encouraged” to schedule her Arrowhead appointments with the same provider since she was getting narcotic pain medications (A.R. 238). From the limited record, it appears that, with the exception of her visit to the spine clinic (A.R. 242), treatment was being provided by different nurse practitioners. See A.R. 235, 238, 245. 14 1 could not reject credibility for lack of treatment where claimant 2 testified that she could not afford to pay for treatment; citing Orn); 3 Marquez v. Astrue, 2010 WL 1709204, at *2 (C.D. Cal. Apr. 27, 2010) 4 (ALJ erred by relying on lack of treatment without expressly 5 considering claimant’s explanation that she did not have health 6 insurance and could not afford to see a doctor; citing Orn). 7 8 Second, it is true that a “conservative” course of treatment 9 sometimes properly may discredit a claimant’s allegations of disabling 10 symptoms. See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 11 2007), cert. denied, 552 U.S. 1141 (2008) (treatment with over-the- 12 counter pain medication is “conservative treatment” sufficient to 13 discredit a claimant’s testimony regarding allegedly disabling pain). 14 In the present case, however, it is uncertain whether the ALJ 15 accurately characterized Plaintiff’s treatment as “conservative.” 16 See, e.g., Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. 17 Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of 18 [Norco] (for several years) is ‘conservative’ or in conflict with 19 Plaintiff’s pain testimony”); Aguilar v. Colvin, 2014 WL 3557308, at 20 *8 (C.D. Cal. July 18, 2014) (“there is evidence in the record that 21 Plaintiff has been prescribed narcotic pain medications, . . . It 22 would be difficult to fault Plaintiff for overly conservative 23 treatment when he has been prescribed strong narcotic pain 24 medications”). 25 26 Third, while the ALJ may properly have relied on “a report of 27 negative findings from the application of medically acceptable 28 clinical and laboratory diagnostic techniques” in considering 15 1 Plaintiff’s credibility, “allegations concerning the intensity and 2 persistence of pain or other symptoms may not be disregarded solely 3 because they are not substantiated by objective medical evidence.” 4 see SSR 96-7p at *6; see also Burch v. Barnhart, 400 F.3d at 681 (lack 5 of objective medical evidence to support the alleged severity of a 6 claimant’s symptomatology “can be a factor” in rejecting a claimant’s 7 credibility, but cannot “form the sole basis”). 8 citation to specific instances in the objective medical evidence which 9 assertedly do not support Plaintiff’s allegations cannot by itself 10 justify the ALJ’s credibility determination. Therefore, the ALJ’s See id. 11 12 Additionally, the ALJ relied on the fact that examination did not 13 show sensory deficits in Plaintiff’s extremities “other than in a non- 14 dermatomal pattern” (A.R. 249), which the ALJ asserted was “suggestive 15 of exaggeration” (A.R. 30). 16 record that such a test result is “suggestive of exaggeration.” 17 Compare A.R. 86 (State agency physician referring to examination but 18 not mentioning “non-dermatomal pattern”). 19 correct in his conclusion, see, e.g., Azizi v. Astrue, 2009 WL 20 1015066, at *6 (C.D. Cal. Apr. 15, 2009) (consultative examiners 21 opining that sensation in a “nondermatomal” distribution suggests 22 “symptom magnification”), the ALJ is not qualified to offer such a 23 conclusion without evidentiary support from a medical expert. 24 may not rely on his or her own lay opinion regarding medical matters. 25 See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ who 26 is not qualified as a medical expert cannot make “his own exploration 27 and assessment as to [the] claimant’s physical condition”); see also 28 Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ may not rely There is no expert medical opinion in the 16 While the ALJ may be An ALJ 1 on his or her own lay opinion regarding medical matters); Ferguson v. 2 Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) (same); cf. Rudder v. 3 Colvin, 2014 WL 3773565, at *12 (N.D. Ill. July 30, 2014) (“The ALJ 4 may be correct that disabling limitations from multiple sclerosis 5 would result in more frequent treatment or need for medication. 6 However, the ALJ must include evidence to support such a conclusion in 7 his opinion because he is not qualified, on his own, to make such 8 determinations.”) (citations and quotations omitted). 9 10 The ALJ also relied on the purported fact that the medical record 11 showed pain medication refills where one might expect forgoing refills 12 based on Plaintiff’s reports that the pain medication did not always 13 help her condition (A.R. 30). 14 forgo refills could bear on a claimant’s credibility, the record of 15 Plaintiff’s refills and their frequency is insufficiently developed to 16 support the ALJ’s conclusion that Plaintiff materially failed to forgo 17 refills. Assuming, arguendo, that failure to See Footnotes 7-9 above and accompanying text.14 18 19 20 21 22 23 24 25 26 27 28 14 Defendant also argues, inter alia, that the ALJ properly relied on the fact that Plaintiff allegedly engaged in work activities in 2011 to discount Plaintiff’s credibility (Defendant’s Motion, p. 7). The Court cannot affirm the administrative decision on the basis of this argument. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision”); see also Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014) (for meaningful appellate review, “we require the ALJ to specifically identify the testimony . . . she or he finds not credible . . . and explain what evidence undermines the testimony”) (citations and quotations omitted). While the ALJ generally referred to the alleged earnings in 2011 as “indicative of the claimant’s ability to engage in substantial gainful activity” at Step One of the sequential evaluation process (A.R. 27), the ALJ did not (continued...) 17 1 Because the circumstances of this case suggest that further 2 administrative review could remedy the ALJ’s errors, remand is 3 appropriate. 4 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) 5 (remand is an option where the ALJ fails to state sufficient reasons 6 for rejecting a claimant’s excess symptom testimony); but see Orn v. 7 Astrue, 495 F.3d at 640 (citing Connett for the proposition that 8 “[w]hen an ALJ’s reasons for rejecting the claimant’s testimony are 9 legally insufficient and it is clear from the record that the ALJ McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 10 would be required to determine the claimant disabled if he had 11 credited the claimant’s testimony, we remand for a calculation of 12 benefits”) (quotations omitted); see also Brown-Hunter v. Colvin, 798 13 F.3d 749, 757-59 (9th Cir. 2015) (discussing the requirements for the 14 “extreme remedy” of crediting testimony as true and remanding for an 15 immediate award of benefits); Ghanim v. Colvin, 763 F.3d 1154, 1166 16 (9th Cir. 2014) (remanding for further proceedings where the ALJ 17 failed to state sufficient reasons for deeming a claimant’s testimony 18 not credible); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 19 (court may “remand for further proceedings, even though all conditions 20 of the credit-as-true rule are satisfied, [when] an evaluation of the 21 record as a whole creates serious doubt that a claimant is, in fact, 22 disabled”); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a 23 24 25 26 27 28 14 (...continued) specifically cite to this evidence as a reason to discount Plaintiff’s credibility. Nor did the ALJ address Plaintiff’s claim that the reported earnings must have been a mistake. See Footnote 4. The ALJ’s discussion at Step One is insufficiently specific for the Court to conclude that the ALJ discounted Plaintiff’s testimony on permissible grounds. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); SSR 96-7p. 18 1 court need not “credit as true” improperly rejected claimant testimony 2 where there are outstanding issues that must be resolved before a 3 proper disability determination can be made); see generally INS v. 4 Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 5 determination, the proper course is to remand for additional agency 6 investigation or explanation, except in rare circumstances); Treichler 7 v. Commissioner, 775 F.3d at 1101 n.5 (remand for further 8 administrative proceedings is the proper remedy “in all but the rarest 9 cases”).15 10 11 CONCLUSION 12 13 For all of the foregoing reasons, Plaintiff’s and Defendant’s 14 motions for summary judgment are denied and this matter is remanded 15 for further administrative action consistent with this Opinion. 16 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 DATED: October 7, 2015. 20 21 ____________________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 15 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). 19
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