Angelica Altamirano v. Carolyn W. Colvin, No. 5:2015cv00407 - Document 20 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is remanded to defendant for the aw ard of benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)
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Angelica Altamirano v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 ANGELICA ALTAMIRANO, 13 Plaintiff, 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. No. ED CV 15-407-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on March 5, 2015, seeking review of the Commissioner’s denial of 22 her application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed 23 before the undersigned Magistrate Judge on April 21, 2015, and April 23, 2015. Pursuant to the 24 Court’s Order, the parties filed a Joint Stipulation on November 12, 2015, that addresses their 25 positions concerning the disputed issue in the case. The Court has taken the Joint Stipulation 26 under submission without oral argument. 27 / 28 / Dockets.Justia.com 1 II. 2 BACKGROUND 3 Plaintiff was born on April 11, 1966. [Administrative Record (“AR”) at 135, 401.] She has 4 past relevant work experience as a warehouse laborer and as a vinyl cutter. [AR at 58-59, 400.] 5 On May 26, 2009, plaintiff filed an application for a period of disability and DIB, alleging that 6 she has been unable to work since September 8, 2008. [AR at 135, 391.] After her application 7 was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before 8 an Administrative Law Judge (“ALJ”). [AR at 11, 78-79.] A hearing was held on April 20, 2011, 9 at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR 10 at 29-65.] A medical expert (“ME”) and a vocational expert (“VE”) also testified. [AR at 44-54, 11 57-64.] On May 20, 2011, the ALJ issued a decision concluding that plaintiff was not under a 12 disability from September 8, 2008, the alleged onset date, through December 31, 2010, the date 13 last insured. [AR at 11-23.] Plaintiff requested review of the ALJ’s decision by the Appeals 14 Council. [AR at 5.] When the Appeals Council denied plaintiff’s request for review on August 27, 15 2012 [AR at 1-3], the ALJ’s decision became the final decision of the Commissioner. See Sam 16 v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). Plaintiff then 17 appealed that final decision by filing a complaint in this Court on November 14, 2012, in case 18 number ED CV 12-1862. On July 24, 2013, judgment was entered remanding the matter to the 19 Commissioner based on this Court’s finding that none of the ALJ’s eight cited reasons for rejecting 20 plaintiff’s credibility was clear and convincing. [AR at 452-64.] A new hearing was held before a 21 different ALJ on September 24, 2014, at which time plaintiff appeared represented by an attorney, 22 but did not testify.1 [AR at 409-16.] On November 6, 2014, the ALJ issued a decision concluding 23 that plaintiff was not under a disability from September 8, 2008, the alleged onset date, through 24 December 31, 2010, the date last insured. [AR at 391-403.] On approximately January 6, 2015, 25 the ALJ’s November 6, 2014, decision became the final decision of the Commissioner. 20 C.F.R. 26 27 28 1 Plaintiff’s counsel told the ALJ that he did not know “that having [plaintiff] testify four years after the [date last insured] is going to be real helpful when she’s already done so [at the prior hearing in 2011].” [AR at 414.] 2 1 §§ 404.981, 422.210. This action followed. 2 3 III. 4 STANDARD OF REVIEW 5 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 6 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 7 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 8 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 9 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 10 is such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation 12 and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) 13 (same). When determining whether substantial evidence exists to support the Commissioner’s 14 decision, the Court examines the administrative record as a whole, considering adverse as well 15 as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); 16 see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must 17 consider the entire record as a whole and may not affirm simply by isolating a specific quantum 18 of supporting evidence.”) (citation and internal quotation marks omitted). “Where evidence is 19 susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 20 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 21 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the 22 ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”) 23 (citation omitted). 24 25 IV. 26 THE EVALUATION OF DISABILITY 27 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 28 to engage in any substantial gainful activity owing to a physical or mental impairment that is 3 1 expected to result in death or which has lasted or is expected to last for a continuous period of at 2 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 1992). 4 5 A. THE FIVE-STEP EVALUATION PROCESS 6 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 7 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 8 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must 9 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 10 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 11 substantial gainful activity, the second step requires the Commissioner to determine whether the 12 claimant has a “severe” impairment or combination of impairments significantly limiting her ability 13 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 14 If the claimant has a “severe” impairment or combination of impairments, the third step requires 15 the Commissioner to determine whether the impairment or combination of impairments meets or 16 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404, 17 subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If 18 the claimant’s impairment or combination of impairments does not meet or equal an impairment 19 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 20 sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disabled 21 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 22 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 23 prima facie case of disability is established. Id. The Commissioner then bears the burden of 24 establishing that the claimant is not disabled, because she can perform other substantial gainful 25 work available in the national economy. Id. The determination of this issue comprises the fifth 26 and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 27 828 n.5; Drouin, 966 F.2d at 1257. 28 / 4 1 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 2 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity 3 during the period from September 8, 2008, the alleged onset date, through December 31, 2010, 4 her date last insured. [AR at 393.] At step two, the ALJ concluded that, through the date last 5 insured, plaintiff had the following severe impairments: 6 [D]egenerative disc disease of the cervical spine; degenerative disc disease of the lumbar spine, status-post laminectomy; Sjogren’s syndrome; fibromyalgia; statuspost right carpal tunnel release; degenerative joint disease of the right knee; [and] benign bone cyst of the right femur. 7 8 9 [Id.] The ALJ found plaintiff’s impairments of anemia and headaches to be non-severe. [AR at 10 394.] At step three, the ALJ determined that through the date last insured, plaintiff did not have 11 an impairment or a combination of impairments that met or medically equaled any of the 12 impairments in the Listings. [AR at 394-95.] The ALJ further found that through the date last 13 insured, plaintiff retained the residual functional capacity (“RFC”)2 to perform less than the full 14 range of light work as defined in 20 C.F.R. § 404.1567(b),3 as follows: 15 [T]he claimant could lift 20 pounds occasionally and 10 pounds frequently; the claimant could stand and/or walk for two hours out of an eight-hour workday; the claimant could sit for eight hours out of an eight-hour workday with normal breaks such as every two hours; the claimant could occasionally stoop, bend, and climb stairs, but she could not climb ladders, work at heights, or balance; concerning her right arm, the claimant was precluded from forceful gripping, grasping or twisting, but she could perform frequent fine manipulation such as keyboarding and gross manipulation such as opening drawers and carrying files; the claimant had no restrictions with her left hand; the claimant could perform occasional neck motions, 16 17 18 19 20 21 22 23 24 25 26 27 28 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). 5 1 she could maintain a fixed head position for 15-40 minutes at a time on occasion, but she should avoid extremes of motions and she should hold her head at a comfortable position at other times; and the claimant should avoid exposure to concentrated extreme odors. 2 3 4 [AR at 395.] At step four, based on the evidence of record and the testimony of the VE at the prior 5 hearing, the ALJ concluded that through the date last insured, plaintiff was unable to perform her 6 past relevant work as a warehouse laborer or vinyl cutter. [AR at 400 (see also AR at 58-60).] 7 At step five, based on plaintiff’s RFC, vocational factors, and the VE’s testimony at the prior 8 hearing, the ALJ found that through her date last insured there were jobs existing in significant 9 numbers in the national economy that plaintiff could perform, including work as an “electronics 10 worker” (Dictionary of Occupational Titles (“DOT”) No. 726.687-101), “office helper” (DOT No. 11 239.567-010), and “assembler small products” (DOT No. 706.684-022). [AR at 401-02 (see also 12 AR at 60-61).] Accordingly, the ALJ determined that plaintiff was not disabled at any time from 13 the alleged onset date of September 8, 2008, through December 31, 2010, her date last insured. 14 [AR at 402.] 15 16 V. 17 THE ALJ’S DECISION 18 A. PLAINTIFF’S CONTENTION 19 Plaintiff contends that the ALJ erred when he failed to properly consider her subjective 20 complaints and failed to properly assess her credibility as required by the Social Security rules and 21 regulations, as well as Ninth Circuit case authority. [Joint Stipulation (“JS”) at 6.] 22 As set forth below, the Court agrees with plaintiff and remands for payment of benefits. 23 24 B. CREDIBILITY 25 As summarized by the ALJ, plaintiff testified at her original hearing as follows: 26 [S]he was unable to continue working due to symptoms of fatigue, dizziness, and the inability to stand. She alleged she was unable to return to work due to constant headaches, difficulty concentrating, hand pain, anemia, and neck pain. She further stated she had right hand problems with more recent left hand pain and she had constant pain in her legs and low back. She also indicated her husband and son did 27 28 6 1 most of the housework and she spent most of her day lying down in bed, reclining and walking around the house. However, she also said she occasionally washed dishes and cooked, and she was able to attend church services weekly. She claimed she frequently changed positions between standing and sitting, she took eight naps per day, fifteen minutes each, and she stated that lying down helped her relax away the pain. 2 3 4 5 [AR at 395-96.] The ALJ found plaintiff to be “partially credible.” [Id.] Plaintiff contends that, for 6 the second time, the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff’s 7 subjective symptom testimony. [JS at 6-13.] 8 “To determine whether a claimant’s testimony regarding subjective pain or symptoms is 9 credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 10 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented 11 objective medical evidence of an underlying impairment ‘which could reasonably be expected to 12 produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 13 341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first test, the ALJ may 14 reject the claimant’s testimony about the severity of her symptoms “only upon (1) finding evidence 15 of malingering, or (2) expressing clear and convincing reasons for doing so.” Benton v. Barnhart, 16 331 F.3d 1030, 1040 (9th Cir. 2003). Factors to be considered in weighing a claimant’s credibility 17 include: (1) the claimant’s reputation for truthfulness; (2) inconsistencies either in the claimant’s 18 testimony or between the claimant’s testimony and his conduct; (3) the claimant’s daily activities; 19 (4) the claimant’s work record; and (5) testimony from physicians and third parties concerning the 20 nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. 21 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 22 (9th Cir. 2014); 20 C.F.R. §§ 404.1529(c), 416.929(c). 23 Where, as here, plaintiff has presented evidence of an underlying impairment, and the ALJ 24 did not find “affirmative evidence” of malingering4 [see generally AR at 393-400], the ALJ’s reasons 25 for rejecting a claimant’s credibility must be specific, clear and convincing. Burrell v. Colvin, 775 26 F.3d 1133, 1136 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); 27 4 28 In fact, the ME testified at the 2011 hearing that there was no evidence in the record of malingering. [AR at 53.] 7 1 Brown-Hunter v. Colvin, __ F.3d __, 2015 WL 6684997, at *5 (9th Cir. Nov. 3, 2015). “General 2 findings [regarding a claimant’s credibility] are insufficient; rather, the ALJ must identify what 3 testimony is not credible and what evidence undermines the claimant’s complaints.” Burrell, 725 4 F.3d at 1138 (quoting Lester, 81 F.3d at 834) (internal quotation marks omitted). The ALJ’s 5 findings “‘must be sufficiently specific to allow a reviewing court to conclude the adjudicator 6 rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit a 7 claimant’s testimony regarding pain.’” Brown-Hunter, 2015 WL 6684997, at *5 (quoting Bunnell, 8 947 F.2d at 345-46). A “reviewing court should not be forced to speculate as to the grounds for 9 an adjudicator’s rejection of a claimant’s allegations of disabling pain.” Bunnell, 947 F.2d at 346. 10 As such, an “implicit” finding that a plaintiff’s testimony is not credible is insufficient. Albalos v. 11 Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per curiam). 12 In this case, after summarizing plaintiff’s subjective complaints as described above [AR at 13 395-96], the ALJ found plaintiff to be “partially credible because she has some limitations, but not 14 to the extent she has alleged,” as “the evidence submitted does not support the severity of 15 symptoms alleged”: 16 17 18 19 20 21 22 23 While the evidence does consistently show the claimant has made pain complaints regarding her symptoms, her alleged functional limitations are not corroborated by the record. There is no indication of her allegedly severe inability to perform activities such as sitting and standing nor is there mention of her taking multiple naps throughout the day. For instance, despite her allegations of difficulty standing, treatment records consistently noted she had a normal gait. Moreover, while she acknowledged stopping work for reasons unrelated to her disability and stated that her symptoms worsened over time, the record does not show an increase in the severity of her impairments around the alleged onset date. She was seen by specialists, such as Dr. Gary Pang and Dr. Raja Ohalla, around that time, but their examinations found normal gait and essentially normal neurologic findings with negative straight leg raising. The claimant had neck complaints, which was supported by the record discussed below, but this was considered in the residual functional capacity herein. However, the discrepancies between the allegations and medical evidence diminish the persuasiveness of the claimant’s subjective complaints and the alleged functional limitations. 24 25 26 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. 27 28 [AR at 396 (citations omitted).] The ALJ then summarized the medical evidence of record [AR at 8 1 2 3 396-400] and concluded: The claimant has significant symptoms from her multiple medically determinable impairments and consideration is given to those symptoms in the limited light limitations adopted herein. These limitations take into consideration the claimant’s subjective complaints, medications, and the actual clinical and diagnostic findings. 4 5 [AR at 400.] 6 Plaintiff contends that the ALJ solely -- and improperly -- relied on his own opinion that the 7 objective medical evidence does not support plaintiff’s subjective complaints to discredit her 8 testimony. [JS at 12.] She argues that, to the contrary, her subjective complaints are supported 9 by the testimony of the ME at the first hearing who indicated that plaintiff “was indeed suffering 10 from multiple objectively verifiable severe impairments for which she had received both 11 conservative and aggressive forms of treatment and that these forms of treatment are typical for 12 someone who is suffering from significant levels of pain.” [JS at 13 (citing AR at 49-54).] 13 Defendant contends that plaintiff ignores the fact that the ALJ found plaintiff “partially 14 credible.” [JS at 13 (citing AR at 396).] Defendant admits that the ALJ is required to make specific 15 credibility findings [JS at 14], but states that “in this joint stipulation, Plaintiff’s contention relies only 16 on her own allegations, without directing the Court to objective evidence to support her alleged 17 limitations. The ALJ provided a valid basis for finding Plaintiff not fully credible and his reasons 18 were supported by substantial evidence.” [AR at 15.] 19 entitled to rely on the lack of objective medical evidence to support plaintiff’s subjective allegations 20 [JS at 15 n.1], and that the ALJ gave plaintiff the “benefit of the doubt” when he found that plaintiff 21 was more limited than shown by the examination of the consultative orthopedist, and the State 22 agency physicians, and when he gave more weight to the more restrictive limitations assessed 23 by the ME. [JS at 15-16 (citations omitted).] Defendant submits that the ALJ was 24 The absence of objective medical evidence to support a plaintiff’s subjective complaints is 25 a factor that an ALJ can consider in evaluating symptom testimony -- but it cannot be the only 26 factor. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (finding that while medical 27 evidence alone cannot discredit testimony as to pain, it is one factor that the ALJ is permitted to 28 consider); Bunnell, 947 F.2d at 345 (once claimant produced objective medical evidence of an 9 1 underlying impairment, an adjudicator may not reject claimant’s subjective complaints “based 2 solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain”). 3 Here, in discounting plaintiff’s subjective symptom allegations, the ALJ relied solely on the “fact” 4 that plaintiff’s “alleged functional limitations” were “not corroborated by the record,” specifically 5 mentioning that there are no records reflecting plaintiff’s alleged inability to sit or stand, the fact 6 that she takes nap multiple times throughout the day, or that there was an increase in the severity 7 of her impairments around the alleged onset date. [AR at 396 (but see, e.g., AR at 334 (on 8 January 18, 2008, plaintiff reported fatigue, dizziness), 338 (same reported on February 1, 2008)).] 9 This was error. Additionally, although the ALJ attempts to contrast plaintiff’s alleged difficulty 10 standing with the fact that “treatment records consistently noted she had a normal gait” [id.], the 11 Court finds this reasoning unpersuasive, as defendant has not shown that “standing” for some 12 period of time is functionally equivalent to “ambulating,” with or without a normal gait. As noted 13 by plaintiff, plaintiff “has had virtually all forms of treatment for pain including prescriptive pain 14 medication, pain management, injections, epidurals, and surgery,” her treatment has consisted 15 of both conservative and aggressive forms of treatment, and it is “evident from the record that 16 these multiple forms of treatment have yet to provide any lasting benefit” to plaintiff. [JS at 8-9.] 17 Plaintiff contends -- and the Court agrees -- that the ALJ “has set forth no inconsistent statements 18 on the part of Plaintiff nor any suggestion that she is inappropriately magnifying her symptoms in 19 any way.” [JS at 12.] The ALJ merely recites the medical evidence in support of his RFC 20 determination without identifying which medical evidence specifically discredits which symptom 21 testimony. [AR at 396-98.] This too is legal error. Brown-Hunter, 2015 WL 6684997, at *6 (ALJ’s 22 failure to identify which testimony she found not credible, and to explain which evidence 23 contradicted that testimony, fell short of meeting the ALJ’s responsibility to provide the reason or 24 reasons upon which her adverse determination was based) (citations omitted). 25 Thus, even if the ALJ’s finding that plaintiff’s subjective complaints concerning her 26 functional limitations were not corroborated by the objective medical evidence was a specific, clear 27 and convincing reason for discounting plaintiff’s allegations -- which the Court does not find -- 28 because this reason by itself cannot be the sole legally sufficient reason for discounting plaintiff’s 10 1 credibility, the ALJ’s credibility determination -- which provides no other clear and convincing 2 reason to discount plaintiff’s credibility -- is not legally sufficient. Rollins, 261 F.3d at 857. 3 Remand is warranted. 4 5 VI. 6 REMAND FOR PAYMENT OF BENEFITS 7 Plaintiff argues that the Court should vacate the final decision of the Commissioner and 8 remand this matter for the immediate payment of benefits. [JS at 18.] She contends that if her 9 subjective statements are credited as true, “there can be but one outcome in this case. . . given 10 the testimony of the vocational expert at the first hearing in this matter that an individual requiring 11 4 hours of unscheduled work breaks per week would not be capable of performing any 12 employment.” [Id. (citing AR at 63).] 13 As noted by the Ninth Circuit in Brown-Hunter, a remand for an immediate award of benefits 14 is appropriate only in rare circumstances. Brown-Hunter, 2015 WL 6684997, at *7. Before 15 ordering that remedy, three requirements must be met: (1) the Court must conclude that the ALJ 16 failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 17 medical opinion (id. (citing Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)); (2) the Court 18 must conclude that the record has been fully developed and further administrative proceedings 19 would serve no useful purpose (id. (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 20 1105 (9th Cir. 2014), for the proposition that this requirement will not be satisfied if the record 21 raises crucial questions as to the extent of a claimant’s impairment given inconsistencies between 22 her testimony and the medical evidence in the record, because these are exactly the sort of issues 23 that should be remanded to the agency for further proceedings)); and (3) the Court must conclude 24 that if the improperly discredited evidence were credited as true, the ALJ would be required to find 25 the claimant disabled on remand. Id. (citing Garrison, 759 F.3d at 1021). Even if all three 26 requirements are met, the Court retains flexibility in determining the appropriate remedy. Id. 27 (citation omitted). For instance, the Court may still remand for further proceedings “when the 28 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the 11 1 meaning of the Social Security Act.” Id. (citing Garrison, 759 F.3d at 1021). 2 In this case, the Commissioner has twice failed to provide legally sufficient reasons for 3 rejecting plaintiff’s subjective symptom testimony -- even after being given a second chance to 4 properly consider the only issue raised by plaintiff in this Court in both cases -- her credibility. 5 Thus, the first Brown-Hunter requirement is met. Next, both ALJs who considered this issue relied 6 on plaintiff’s original hearing testimony and the record evidence relating to the period between her 7 alleged onset date and her date last insured (now almost five years in the past) -- and both failed 8 to provide specific, clear and convincing reasons to discredit plaintiff’s subjective symptom 9 testimony. There would simply be nothing new to consider if the Court were to order yet another 10 remand for consideration of this issue. Thus, the Court sees no purpose in returning the case to 11 the Commissioner to make a third determination, based on the same evidence previously 12 considered, as to whether plaintiff’s subjective complaints should be credited or rejected. 13 “Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, 14 let’s play again’ system of disability benefits adjudication.” Benecke, 379 F.3d at 595; see also 15 Varney v. Sec’y of Health and Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988) (“Certainly 16 there may exist valid grounds on which to discredit a claimant’s pain testimony . . . . But if grounds 17 for such a finding exist, it is both reasonable and desirable to require the ALJ to articulate them 18 in the original decision.”) (emphasis added) (citation omitted). Plaintiff has already waited more 19 than six years for a disability determination. Benecke, 379 F.3d at 595 (“Remanding a disability 20 claim for further proceedings can delay much needed income for claimants who are unable to work 21 and are entitled to benefits, often subjecting them to tremendous financial difficulties while awaiting 22 the outcome of their appeals and proceedings on remand.”) (quotation marks and citation omitted). 23 Under these circumstances, the Court is persuaded that “remanding for further administrative 24 proceedings would serve no useful purpose and would unnecessarily extend [plaintiff’s] long wait 25 for benefits.” Id. Thus, the second Brown-Hunter requirement is met. Finally, the VE testified that 26 if a claimant was either “off-task 20 percent of the time due to fatigue and pain,” or “absent three 27 or more days a month due to pain and fatigue”; or needed to alternate positions as often as every 28 10 to 15 minutes on some days; or required up to four hours of unscheduled breaks during a 12 1 workweek on a regular basis, there would be no work that individual could do. [AR at 61-63.] As 2 these limitations reflect plaintiff’s subjective symptom testimony that she spends at least two hours 3 a day reclining, and some additional portion of the day lying down in bed; attends church but 4 alternates sitting and standing during the service; takes approximately eight 15-minute naps each 5 day; and experiences constant neck pain, constant severe headaches, and constant pain in her 6 legs and lower back [see AR at 35-44, 55-57; see also AR at 152, 179, 182, 189, 192, 194], if 7 credited as true, the ALJ would be required to find plaintiff disabled on remand and the third 8 Brown-Hunter requirement is also met. 9 10 Based on the foregoing, the Court finds that this is one of those rare circumstances where a remand for an immediate award of benefits is appropriate. 11 12 VII. 13 CONCLUSION 14 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 15 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for the 16 award of benefits. 17 18 19 20 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 21 22 DATED: November 19, 2015 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 13
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