Doris J White v. Carolyn W Colvin, No. 5:2014cv02592 - Document 20 (C.D. Cal. 2015)
Court Description: MEMORANDUM AND OPINION ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits,for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). LET JUDGMENT BE ENTERED ACCORDINGLY. (See document for further details.) (sbou)
Download PDF
<![CDATA[
Doris J White v. Carolyn W Colvin Doc. 20 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 DORIS J. WHITE, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 17 ) No. EDCV 14-2592-AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 I. PROCEEDINGS 23 24 25 On April 5, 2011, Plaintiff Doris J. White (“Plaintiff”) applied 26 for a period of disability and disability insurance benefits based on 27 a 28 since June 1, 2010. disabling condition which had rendered (A.R. at 169-70). her unable to work The Administrative Law Judge 1 Dockets.Justia.com 1 (“ALJ”), 2 testimony 3 vocational expert (“V.E.”) Kelly Winn-Boaitey, on May 8, 2013. 4 at 23-41). 5 written decision. 6 review of the ALJ’s decision. Charles from E. Stevenson, Plaintiff, examined medical the expert records Arnold and heard Ostrow, and (A.R. On May 24, 2013, the ALJ denied Plaintiff benefits in a (A.R. at 12-18). The Appeals Council denied (A.R. at 1-3). 7 8 On December 19, 2014, Plaintiff filed a Complaint pursuant to 9 42 U.S.C. § 405(g) alleging that the Social Security Administration 10 erred in denying her disability benefits. (Docket Entry No. 1). 11 April 29, 2015, Defendant filed an Answer to the Complaint, (Docket 12 Entry 13 (Docket Entry No. 15). 14 a United States Magistrate Judge. 15 August 16 Stip.”) 17 claim. No. 18, 14), and 2015, setting the the forth On Certified Administrative Record (“A.R.”), The parties have consented to proceed before parties their (Docket Entry Nos. 11, 12). filed a respective Joint Stipulation positions on On (“Joint Plaintiff’s (Docket Entry No. 19). 18 II. SUMMARY OF TESTIMONY AND ALJ’S DECISION 19 20 At the May 8, 2013, hearing, Plaintiff testified that in June 21 22 2010 she stopped working with her husband in 23 metalworking shop because of “fumes and the metal dust,” and “the 24 bending over and sitting a long time.” 25 in the shop included “[s]ome paperwork,” paying “maybe five” bills 26 for the business every month, and operating a drill press for a 27 maximum of three hours per day. 28 testified that she was sometimes paid for working forty hours without (A.R. at 29-31). (A.R. at 30-31). 2 a home-based Her duties Plaintiff also 1 working forty hours because her husband “was trying to help [her] get 2 [her] Social Security up, so when [she] retired [she would] have 3 enough money, because [she] was mostly a housewife.” 4 Plaintiff also said that she was generally paid when the business had 5 available money and not based on the work that she performed. 6 at 33). 7 unable to do 30 or 40 hours of paperwork per week for her husband’s 8 business, 9 paperwork in the past and had “never worked a full eight hour shift 10 (A.R. at 32). (A.R. She testified that, in her current condition, she would be but with him.” she also stated that she had not done that much (A.R. at 37). 11 12 Plaintiff testified that her breathing problems prevented her 13 from working with her husband and that her back began to hurt when 14 she sat too long. 15 usually sat in a recliner during the day and could sit somewhere that 16 was “soft” and had back support, (A.R. at 34-35), but she could not 17 work in an office without experiencing back and shoulder pain, even 18 if periods of sitting were interspersed with periods of standing. 19 (A.R. at 35-36). 20 nebulizer four times daily, with each use taking ten minutes. 21 at 36). (A.R. at 34). She further testified that she She also testified that she was supposed to use a (A.R. 22 The 23 V.E. testified that, if Plaintiff’s past work could be 24 characterized as substantial gainful activity (“SGA”), her position 25 was best characterized as that of an administrative clerk. 26 38). 27 that 28 Plaintiff had lifted up to 30 pounds of files when working with her (A.R. at Although the Dictionary of Occupational Titles characterized occupation as light work, the 3 V.E. stated that, because 1 husband, her position could be characterized as “medium work” as it 2 was actually performed. 3 whether Plaintiff’s past work could be performed by an individual 4 with the following limitations: 5 occasionally and ten pounds frequently; able to stand and walk six 6 hours per day; able to sit six hours per day; unable to reach above 7 her shoulders; unable to operate foot pedals; able to bend, stoop, 8 crawl, and climb stairs occasionally; unable to climb ladders, ropes, 9 and scaffolding; and fumes, (A.R. at 38). unable able to lift and carry twenty pounds to work dust, around 11 extreme changes in temperature. 12 that individual could perform Plaintiff’s past work as defined in the 13 Dictionary 14 performed 15 occupation would likely not accommodate regular unscheduled breaks 16 totaling four hours during the work week. 17 attorney 18 considered SGA at all. it. (A.R. commented at that extreme heights, concentrated Occupational gases, unprotected 10 of odors, The ALJ asked the V.E. (A.R. at 39). Titles 39). but The Plaintiff’s not temperatures, The V.E. stated that as Plaintiff also V.E. opined (A.R. at 40). past or work actually that that Plaintiff’s should not be (A.R. at 39). 19 20 The ALJ applied the five-step process to the evaluation of the 21 record in Plaintiff’s case. 22 determined 23 activity after the alleged onset date. 24 the ALJ found that Plaintiff had severe impairments including chronic 25 obstructive 26 degenerative 27 peripheral vascular disease, osteoarthritis of the right shoulder, 28 and cervical degenerative discogenic disease. that Plaintiff pulmonary disc (A.R. at 12-14). had not disease, disease engaged 4 in substantial (A.R. at 14). idiopathic with At step one, the ALJ neuropathy, L5-S1 gainful At step two, lumbo-sacral radiculopathy, (A.R. at 14). asthma, At step 1 three, the ALJ found that Plaintiff’s impairments did not meet or 2 equal a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 3 (A.R. at 15). 4 of the musculoskeletal and respiratory listings” were unmet. 5 at 15). The ALJ noted particularly that the criteria for “all (A.R. 6 Before proceeding to step four, the ALJ found that Plaintiff had 7 8 the RFC to perform light work as defined in 20 CFR section 9 404.1567(b) with additional limitations consistent with those posed 10 in his hypothetical to the V.E.1 (A.R. at 15). 11 Plaintiff’s impairments could be expected to cause her symptoms, but 12 her statements about the “intensity, persistence and limiting effects 13 of 14 explained in this decision.” 15 RFC, the ALJ gave “greatest weight” to the testimony of the medical 16 expert, and also gave “significant weight” to the opinions of a 17 consultative examining physician and a non-examining state agency 18 physician. [her] symptoms [were] not entirely The ALJ stated that credible (A.R. at 16). for the reasons In assessing Plaintiff’s (A.R. at 16-17). 19 20 At step four, the ALJ determined that Plaintiff possessed the 21 RFC to return to her past relevant work as an administrative clerk as 22 that 23 (A.R. at 17). 24 25 26 27 28 occupation is generally performed in the national economy. The ALJ rejected the assertion that Plaintiff had no 1 Specifically, the ALJ’s decision stated that Plaintiff “is precluded from overhead reaching with the upper extremities; she is precluded from operating foot pedals with the lower extremities; she is limited to occasional bending, stooping, crawling, and climbing stairs; she is precluded from climbing ladders, ropes or scaffolds or working at unprotected heights; she is precluded from working around concentrated fumes, odors, dusts, gasses, extremes of temperature (hot or cold) and extreme temperature changes.” (A.R. at 15). 5 1 past relevant work, ruling that Plaintiff could not simultaneously 2 report full-time work for purposes of qualifying for Social Security 3 benefits while also denying that she had engaged in past relevant 4 work. (A.R. at 17-18). 5 The ALJ accordingly determined that Plaintiff was not disabled 6 7 within the meaning of 42 U.S.C. sections 416(i) and 423(d). 8 III. STANDARD OF REVIEW 9 10 11 This court reviews the Administration’s decision to determine if 12 the decision is free of legal error and supported by substantial 13 evidence. 14 1157, 1161 (9th Cir. 2012). 15 mere scintilla, but less than a preponderance. 16 759 F.3d 995, 1009 (9th Cir. 2014). 17 evidence supports a finding, “a court must consider the record as a 18 whole, 19 detracts 20 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 21 omitted). 22 either affirming or reversing the ALJ’s conclusion, [a court] may not 23 substitute [its] judgment for that of the ALJ.” 24 Admin., 466 F.3d 880, 882 (9th Cir. 2006). 25 \\ 26 \\ 27 \\ 28 \\ See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d weighing from both the “Substantial evidence” is more than a evidence Garrison v. Colvin, To determine whether substantial that [Commissioner’s] supports and conclusion.” evidence Aukland that v. As a result, “[i]f the evidence can reasonably support 6 Robbins v. Soc. Sec. 1 IV. PLAINTIFF’S CONTENTIONS 2 3 Plaintiff contends that the ALJ: (1) improperly rejected her 4 testimony 5 considered the vocational issues at Step 4 of the five-step process. 6 (Joint Stip. at 3). as not credible; and (2) incorrectly developed and 7 8 V. DISCUSSION 9 10 After reviewing the record, the Court finds that Plaintiff’s 11 first 12 remand is appropriate on the issue of whether the ALJ improperly 13 rejected Plaintiff’s testimony as not credible, the Court declines to 14 consider the remaining issues. claim warrants remand for further consideration. Because 15 16 A. The ALJ Erred in Rejecting Plaintiff’s Testimony as Not Credible 17 18 A claimant initially must produce objective medical evidence 19 establishing a medical impairment reasonably likely to be the cause 20 of the subjective symptoms. 21 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 22 1991). 23 underlying impairment that could reasonably be expected to produce 24 the pain or other symptoms alleged, and there is no evidence of 25 malingering, the ALJ may reject the claimant’s testimony regarding 26 the severity of his pain and symptoms only by articulating specific, 27 clear and convincing reasons for doing so. 28 __ F.3d Smolen v. Chater, 80 F.3d 1273, 1281 Once a claimant produces objective medical evidence of an __, 2015 WL 6684997 at 7 *5 Brown-Hunter v. Colvin, (9th Cir. 2015) (citing 1 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see 2 also Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 3 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th 4 Cir. 1997). 5 6 Plaintiff asserts that the ALJ improperly rejected her testimony 7 as not credible and failed to identify evidence that supported this 8 finding. 9 properly rejected Plaintiff’s testimony in light of: (1) the opinions 10 of the medical expert, consultative examining physician, and non- 11 examining 12 Plaintiff’s 13 activities; and (3) Plaintiff’s inconsistent statements regarding her 14 past work. (Joint Stip. at 3-8). state agency alleged Defendant asserts that the ALJ physician; limitations and (2) inconsistencies several of her between self-reported (Joint Stip. at 8-14). 15 16 The ALJ found Plaintiff’s testimony regarding the intensity, 17 persistence 18 credible in the following excerpt: and limiting effects of her symptoms not entirely 19 20 21 22 23 24 25 26 27 28 The claimant alleges that her ability to work is limited by COPD, emphysema, asthma, bronchitis, arthritis, and muscle cramps. The claimant reports that she suffers from joint pain in her shoulders, back, hips and left knee, and she experiences muscle cramps when walking too far. She also alleges that she experiences shortness of breath. After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision. 8 1 The objective medical evidence clearly supports a finding of COPD and asthma, as well as mild degenerative disc disease and mild arthritic changes affecting the claimant’s cervical and lumbo-sacral spine. There is also some evidence of mild degenerative changes to the right shoulder, and some report of idiopathic neuropathy. 2 3 4 5 The claimant reports that she is able to lift a gallon of milk, and she can carrying [sic] about 10 pounds of groceries from the car to the house, two or three times per day. The claimant is able to drive a vehicle, and she sleeps about eight hours, with a one-hour nap mid-day. The claimant’s treating physician reports that the claimant has “restricted” ability to stand, walk, lift, carry, handle objects, and travel, but he does not offer an opinion regarding her specific limitations and the extent of her residual functional capacity. The claimant testified that she stopped smoking in late 2011. 6 7 8 9 10 11 12 (A.R. at 16 (citations omitted)). 13 14 The ALJ’s opinion then reviews and evaluates the opinions of the 15 medical expert, consultative examining physician, and non-examining 16 state agency physician, and concludes: 17 18 Based on a review of all available evidence, including the claimant’s testimony, the medical records, and the medical opinions of the consultative examiner, state agency medical consultant, and impartial medical expert, the undersigned is persuaded that the claimant is capable of performing light exertional work, with the additional restrictions described above. 19 20 21 22 23 (A.R. at 17). 24 25 26 27 28 The ALJ’s opinion does not explicitly identify the ALJ’s reasons for discrediting Plaintiff’s testimony. fails to provide “specific, clear The ALJ’s opinion therefore and convincing reasons” for rejecting Plaintiff’s testimony about the intensity, persistence, and 9 1 limiting effects of her symptoms. 2 WL 6684997 at *5-*6 (rejecting ALJ’s credibility determination where 3 ALJ “did not specifically identify . . . inconsistences; she simply 4 stated her non-credibility conclusion and then summarized the medical 5 evidence 6 Barnhart, 7 evidence” can be “a factor” in rejecting credibility, but cannot 8 “form the sole basis”). supporting 400 her F.3d 676, RFC See Brown-Hunter, __ F.3d __, 2015 determination”). 681 (9th Cir. See 2005) also (“lack Burch of v. medical 9 10 Defendant argues that the Court may affirm the ALJ’s partial 11 rejection 12 between 13 including the opinions of the medical expert, consultative examining 14 physician, 15 (2) inconsistencies between Plaintiff’s limitations and several of 16 her 17 statements regarding the nature of her past work. 18 14). 19 inconsistencies in testimony or medical evidence that the ALJ did not 20 specifically 21 Circuit noted in Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014): of Plaintiff’s Plaintiff’s testimony and self-reported testimony and the non-examining activities; based on: objective state and (1) inconsistencies medical agency (3) Plaintiff’s evidence, physician; inconsistent (Joint Stip. at 8- However, the Court cannot affirm an ALJ’s decision based upon identify in support of his decision. As the Ninth 22 23 24 25 26 27 28 “We are constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Our decisions make clear that we may not take a general finding — an unspecified conflict between Claimant's testimony about daily activities and her reports to doctors — and comb the administrative record to find specific conflicts. “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “To support a lack of 10 1 2 3 4 5 6 credibility finding, the ALJ was required to point to specific facts in the record....” Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009) (emphasis added) (internal quotation marks omitted). Here, the ALJ stated only — in passing and in a different section than the credibility determination — that Claimant's self-reports were inconsistent in some unspecified way with her testimony at the hearing. That finding is insufficient to meet “our requirements of specificity.” Connett, 340 F.3d at 873. [. . . .] 7 8 9 10 11 12 13 14 The government argues that Claimant's testimony that she has, on average, one or two headaches a week conflicts with the medical record. As an initial matter, the ALJ never connected the medical record to Claimant's testimony about her headaches. Although the ALJ made findings [. . .] concerning Claimant's treatment for headaches, he never stated that he rested his adverse credibility determination on those findings. For that reason alone, we reject the government's argument that the history of treatment for headaches is a specific, clear, and convincing reason to support the credibility finding. 15 16 Burrell, 775 F.3d at 1138-39. 17 (“Because the ALJ did not assert specific facts or reasons to reject 18 Connett’s testimony . . . we must reverse the district court on this 19 issue.”); Brown-Hunter, __ F.3d __, 2015 WL 6684997 at *6 (“Because 20 the ALJ failed to identify the testimony she found not credible, she 21 did not link that testimony to the particular parts of the record 22 supporting 23 error.”); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) 24 (court “cannot affirm the decision of an agency on a ground that the 25 agency did not invoke in making its decision”). 26 27 28 her non-credibility See also Connett, 340 F.3d at 874 determination. This was legal Here, although the ALJ summarized Plaintiff’s testimony about her daily activities and the available medical evidence, he did not clearly identify the evidence that supported his credibility finding. 11 1 The ALJ noted that Plaintiff’s inconsistent statements about her work 2 history were “self-serving” and “unsustainable,” and he did not “find 3 [Plaintiff’s] statements in this regard to be credible or legally 4 tenable.” 5 different, subsequent section of the ALJ’s order, and the ALJ did not 6 state that he rested the challenged adverse credibility determination 7 on 8 Plaintiff’s statements were “not entirely credible” is not adequately 9 supported and does not provide the specificity required by case law. these (A.R. at 17). findings. However, these findings were made in a As a result, the ALJ’s conclusion that 10 11 B. The ALJ’s Error Was Not Harmless 12 13 “[H]armless error principles apply in the Social Security . . . 14 context.” 15 (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 16 Cir. 2006)). 17 ‘inconsequential to the ultimate nondisability determination.’” 18 (citing Carmickle v. Comm’r Soc. Sec. Admin., 466 F.3d 880, 885 (9th 19 Cir. 2006)). Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) Generally, “an ALJ’s error is harmless where it is Id. 20 21 The Court cannot conclude that the ALJ’s errors were harmless. 22 Plaintiff’s credibility was directly relevant to assessing her 23 limitations and, in turn, her RFC. 24 critical finding contributing to the final . . . decision about 25 disability.” 26 2011) (quoting SSR 96—5p). 27 ALJ’s determination that she could return to his prior work. 28 at 17-18). A claimant’s RFC “may be the most See McCawley v. Astrue, 423 F. App’x 687, 689 (9th Cir. Here, Plaintiff’s RFC was central to the (A.R. Because the Court cannot determine that the ALJ’s errors 12 1 are “inconsequential to the ultimate disability determination,” the 2 errors cannot be deemed harmless. See Carmickle, 466 F.3d at 885. 3 4 C. Remand Is Warranted 5 The decision whether to remand for further proceedings or order 6 7 an immediate award of benefits is within the district court’s 8 discretion. 9 Where no useful purpose would be served by further administrative 10 proceedings, or where the record has been fully developed, it is 11 appropriate to exercise this discretion to direct an immediate award 12 of benefits. 13 further 14 proceedings.”). 15 that further administrative review could remedy the Commissioner’s 16 errors, remand is appropriate. 17 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Id. at 1179 (“[T]he decision of whether to remand for proceedings turns upon the likely utility of such However, where the circumstances of the case suggest McLeod v. Astrue, 640 F.3d 881, 888 18 19 Here, the Court remands primarily because it cannot effectively 20 review the ALJ’s 21 problem. 22 testimony should necessarily have been credited or that the ALJ would 23 necessarily be required to find Plaintiff disabled if Plaintiff’s 24 testimony were credited. The opinion, record also and further does not review establish might that remedy this Plaintiff’s Remand is therefore appropriate. 25 26 The Court has not reached any other issue raised by Plaintiff 27 except insofar as to determine that reversal with a directive for the 28 immediate payment of benefits would be inappropriate at this time. 13 1 Accordingly, the Court declines to rule on Plaintiff’s claims that 2 the ALJ’s incorrectly developed and considered the vocational issues 3 at Step 4 of the five-step process. Because this matter is being 4 remanded this 5 considered on remand, if necessary. for further consideration, issue should also be 6 7 VI. CONCLUSION 8 9 For the foregoing reasons, the decision of the Administrative 10 Law Judge is VACATED, and the matter is REMANDED, without benefits, 11 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 16 17 Dated: December 14, 2015 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 14
]]>
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.
