Eduardo E. Hernandez v. Carolyn W. Colvin, No. 5:2015cv00606 - Document 24 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp) Modified on 12/3/2015 (sp).
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Eduardo E. Hernandez v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 EDUARDO E. HERNANDEZ, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 15-606-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 March 30, 2015, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on May 21, 2015. 28 /// Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on October 19, 2015.1 2 Defendant filed a motion for summary judgment on November 18, 2015.2 3 The Court has taken the motions under submission without oral 4 argument. See L.R. 7-15; “Order,” filed April 6, 2015. 5 6 BACKGROUND 7 8 9 Plaintiff asserts disability since August 18, 2011, based on several alleged impairments, including fibromyalgia (Administrative 10 Record (“A.R.”) 31-68, 206). In his testimony before the 11 Administrative Law Judge (“ALJ”), Plaintiff testified he suffers from 12 pain, fatigue and other limitations of allegedly disabling severity 13 (A.R. 34-68). 14 (A.R. 30). Plaintiff’s last insured date was December 31, 2012 15 16 The ALJ found that: 17 18 Through the date last insured, [Plaintiff] had the following 19 severe impairments: lumbago; lumbar radiculopathy; 20 neuroforaminal stenosis at L4-S1; myalgia and myositis; 21 neurogenic bladder; obstructive sleep apnea; right knee 22 medial meniscus tear chondromalacia of patella; synovitis 23 and tenosynovitis; partial medial meniscectomy; 24 25 26 27 28 1 Plaintiff’s motion violates paragraph VI of this Court’s “Order,” filed April 6, 2015. Counsel for Plaintiff shall heed the Court’s orders in the future. 2 Defendant’s motion also violates paragraph VI of this Court’s “Order,” filed April 6, 2015. Counsel for Defendant also shall heed the Court’s orders in the future. 2 1 chondroplasty of medial femoral condyle and trochlear 2 groove; mild degenerative disc disease at C5-6; right 3 shoulder rotator cuff tear; obesity; and hyperlipidemia 4 5 (A.R. 14). The ALJ also purported to find, however, that Plaintiff 6 does not have any “medically determinable impairment” of fibromyalgia 7 (A.R. 15). In this regard, the ALJ stated: 8 9 The undersigned notes that the claimant made complaints of 10 “whole body pain,” and was diagnosed with fibromyalgia (Ex. 11 6F, p. 147). 12 American College of Rheumatology (ACR). 13 Administration recognizes fibromyalgia as [a] medically 14 determinable impairment if there are signs that are 15 clinically established by the medical record. 16 primarily the tender points. 17 in patients as “widespread pain in all four quadrants of the 18 body for a minimum duration of three months and at least 11 19 of the 18 specified tender points which cluster around the 20 neck and shoulder, chest, hip, knee, and elbow regions.” 21 Other typical symptoms, some of which can be signs if they 22 have been clinically documented over time, are irritable 23 bowel syndrome, chronic headaches, temporomandibular joint 24 dysfunction, sleep disorder, severe fatigue, and cognitive 25 dysfunction. 26 undersigned finds fibromyalgia is not a medically 27 The Social Security The signs are The ACR defines the disorder Based on the above-described criteria, the /// 28 Fibromyalgia is a disorder defined by the /// 3 1 determinable impairment in this case because there are no 2 such signs documented in the medical record. 3 4 (Id.) (emphasis added). 5 6 The ALJ found Plaintiff retains the residual functional capacity 7 to perform a narrowed range of light work, including Plaintiff’s past 8 relevant work (A.R. 17-22). 9 testimony not credible (A.R. 18-20). The ALJ deemed Plaintiff’s contrary The ALJ cited as one of the 10 bases for this credibility determination Plaintiff’s supposed 11 testimony that “he continued to seek employment after the alleged 12 onset date” (A.R. 19). Accordingly, the ALJ found Plaintiff not 13 disabled (A.R. 22-23). The Appeals Council considered additional 14 evidence but denied review (A.R. 1-5). 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration’s decision to determine if: (1) the Administration’s 20 findings are supported by substantial evidence; and (2) the 21 Administration used correct legal standards. 22 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 23 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 24 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 25 Substantial evidence is “such relevant evidence as a reasonable mind 26 might accept as adequate to support a conclusion.” 27 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 28 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 4 See Carmickle v. Richardson v. 1 If the evidence can support either outcome, the court may 2 not substitute its judgment for that of the ALJ. 3 Commissioner’s decision cannot be affirmed simply by 4 isolating a specific quantum of supporting evidence. 5 Rather, a court must consider the record as a whole, 6 weighing both evidence that supports and evidence that 7 detracts from the [administrative] conclusion. But the 8 9 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted). 11 12 Where, as here, the Appeals Council considered additional 13 evidence but denied review, the additional evidence becomes part of 14 the record for purposes of the Court’s analysis. 15 Commissioner of Social Sec. Admin., 682 F.3d at 1163 (“[W]hen the 16 Appeals Council considers new evidence in deciding whether to review a 17 decision of the ALJ, that evidence becomes part of the administrative 18 record, which the district court must consider when reviewing the 19 Commissioner’s final decision for substantial evidence”; expressly 20 adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); 21 Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may 22 consider evidence presented for the first time to the Appeals Council 23 “to determine whether, in light of the record as a whole, the ALJ’s 24 decision was supported by substantial evidence and was free of legal 25 error”); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) (“the 26 Appeals Council considered this information and it became part of the 27 record we are required to review as a whole”); see generally 20 C.F.R. 28 §§ 404.970(b), 416.1470(b). 5 See Brewes v. 1 DISCUSSION 2 3 4 I. The ALJ’s Decision Mischaracterizes the Record in at Least Two Significant Respects. 5 6 The ALJ mischaracterized the record while rejecting the diagnosis 7 of fibromyalgia. After correctly observing that the “signs” of 8 fibromyalgia “are primarily the trigger points” (“at least 11 of the 9 18 specified tender points”),3 the ALJ incorrectly asserted that 10 “there are no such signs documented in the medical record” (A.R. 15). 11 In fact, the medical record does document “such signs” (see A.R. 652 12 (“tender points: 15/18”)). 13 14 The ALJ also mischaracterized the record while rejecting 15 Plaintiff’s credibility. The ALJ incorrectly asserted that Plaintiff 16 “acknowledged he continued to seek employment after the alleged onset 17 date” (A.R. 19; see also A.R. 18 (ALJ similarly asserting that 18 Plaintiff “admitted that he has looked for work and applied to job 19 posting since the alleged onset date”)). 20 that he sought employment only before the alleged August 18, 2011 21 onset date (A.R. 57, 61). In fact, Plaintiff testified 22 23 An ALJ’s material mischaracterization of the record can warrant 24 remand. See, e.g., Regennitter v. Commissioner of Social Sec. Admin., 25 166 F.3d 1294, 1297 (9th Cir. 1999). Both of the mischaracterizations 26 27 28 3 Diagnosing fibromyalgia ordinarily involves testing for tenderness of certain points on a patient’s body. See, e.g., Weiler v. Shalala, 922 F. Supp. 689, 693 (D. Mass. 1996). 6 1 in the present case were potentially material. 2 3 II. Several of the Reasons Stated by the ALJ for the Rejection of 4 Plaintiff’s Credibility are Legally Insufficient on the Present 5 Record. 6 7 Where, as here, an ALJ finds that a claimant’s medically 8 determinable impairments reasonably could be expected to cause the 9 symptoms alleged (A.R. 19), the ALJ may not discount the claimant’s 10 testimony regarding the severity of the symptoms without making 11 “specific, cogent” findings, supported in the record, to justify 12 discounting such testimony. 13 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 14 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 15 (indicating that ALJ must state “specific, clear and convincing” 16 reasons to reject a claimant’s testimony where there is no evidence of 17 malingering).4 18 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ’s 19 credibility findings “must be sufficiently specific to allow a 20 reviewing court to conclude the ALJ rejected the claimant’s testimony See Berry v. Astrue, 622 F.3d 1228, 1234 Generalized, conclusory findings do not suffice. 21 22 4 23 24 25 26 27 28 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 at 1136-37; 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); 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. 7 See 1 on permissible grounds and did not arbitrarily discredit the 2 claimant’s testimony”) (internal citations and quotations omitted); 3 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 4 must “specifically identify the testimony [the ALJ] finds not to be 5 credible and must explain what evidence undermines the testimony”); 6 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 7 which symptom testimony is not credible and what facts in the record 8 lead to that conclusion.”); see also Social Security Ruling 96-7p.5 9 lack of objective medical evidence to support the alleged severity of 10 a claimant’s symptomatology “can be a factor” in rejecting a 11 claimant’s credibility, but cannot “form the sole basis.” 12 A v. Barnhart, 400 F.3d 676, 681 (2005). See Burch 13 14 Several reasons stated by the ALJ for the rejection of 15 Plaintiff’s credibility cannot withstand analysis. As previously 16 discussed, the stated reason that Plaintiff “acknowledged he continued 17 to seek employment after the alleged onset date” was based on 18 mischaracterization of Plaintiff’s testimony. 19 20 Another reason stated by the ALJ for rejecting Plaintiff’s 21 credibility was the supposedly “conservative” nature of Plaintiff’s 22 treatment (A.R. 19). 23 properly may discredit a claimant’s allegations of disabling symptoms. 24 See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), 25 cert. denied, 552 U.S. 1141 (2008) (treatment with over-the-counter A conservative course of treatment sometimes 26 27 28 5 Social security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 8 1 pain medication is “conservative treatment” sufficient to discredit a 2 claimant’s testimony regarding allegedly disabling pain). 3 present case, however, it is doubtful that Plaintiff’s treatment has 4 been truly “conservative” in nature. 5 injections for pain, prescriptions for narcotic pain medication 6 (including Tramadol and Vicodin) and surgery (although the surgery 7 occurred several months after Plaintiff’s last insured date) (A.R. 18, 8 47-48, 310, 407-08, 412-13, 427, 675). 9 treatment as “conservative” may well be inaccurate. In the Plaintiff has received repeated Characterization of such See, e.g., 10 Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) 11 (“there is evidence in the record that Plaintiff has been prescribed 12 narcotic pain medications, such as Vicodin. . . . 13 difficult to fault Plaintiff for overly conservative treatment when he 14 has been prescribed strong narcotic pain medications”); Brunkalla- 15 Saspa v. Colvin, 2014 WL 1095958, at *1 (C.D. Cal. March 18, 2014) 16 (“[T]he ALJ found that Plaintiff had been conservatively treated with 17 Vicodin. . . . 18 alleviate pain”) (citations and quotations omitted); Sanchez v. 19 Colvin, 2013 WL 1319667, at *4 (C.D. Cal. March 29, 2013) (“Surgery is 20 not conservative treatment”); Harrison v. Astrue, 2012 WL 527419, at 21 *7 (D. Or. Feb. 16, 2012) (nerve blocks and multiple steroid 22 injections “certainly not conservative”); Eicholtz v. Astrue, 2008 WL 23 4642976, at *3 (C.D. Cal. Oct. 20, 2008) (court acknowledged the 24 precept that “[a]n ALJ may discount a claimant’s testimony based on 25 conservative treatment,” but appeared to deem this precept 26 inapplicable because the claimant took Tramadol); but see Bartlett v. 27 Colvin, 2015 WL 2412457, at *12 (D. Or. May 21, 2015) (characterizing 28 the prescription of Vicodin as “conservative treatment”). It would be But Vicodin qualifies as strong medication to 9 1 To the extent the ALJ inferred that Plaintiff’s failure to have 2 surgery earlier demonstrated the allegedly non-disabling severity of 3 his symptoms, the inference lacks support in the medical record. 4 ALJ was not qualified to draw such an inference on his own. 5 v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ who is not 6 qualified as a medical expert cannot make “his own exploration and 7 assessment as to [the] claimant’s physical condition”); see also Rohan 8 v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ may not rely on 9 his or her own lay opinion regarding medical matters); Ferguson v. The See Day 10 Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) (same); cf. Rudder v. 11 Colvin, 2014 WL 3773565, at *12 (N.D. Ill. July 30, 2014) (“The ALJ 12 may be correct that disabling limitations from multiple sclerosis 13 would result in more frequent treatment or need for medication. 14 However, the ALJ must include evidence to support such a conclusion in 15 his opinion because he is not qualified, on his own, to make such 16 determinations.”). 17 18 The ALJ’s lack of medical expertise also renders legally 19 insufficient the ALJ’s discussion of Plaintiff’s alleged medication 20 side effects. 21 fatigue as a result of his impairment and the medication he takes 22 therefor (A.R. 38-39, 52-53). Plaintiff testified that he suffers from disabling The ALJ responded briefly: 23 24 [A]lthough the claimant has alleged various side effects 25 from the use of medications, the record indicates generally 26 that those side effects are mild and would not interfere 27 with the claimant’s ability to perform work activities in 28 any significant manner. 10 1 (A.R. 19). The medical record does not demonstrate that the side 2 effects from Plaintiff’s narcotic medications are “mild,” and, again, 3 the ALJ lacks the medical expertise to define on his own the severity 4 of side effects from particular medications. 5 6 The ALJ also purported to rely on what the ALJ characterized as 7 Plaintiff’s “somewhat normal level of daily activity and interaction” 8 (A.R. 19). 9 activities that would not support an adverse inference regarding In fact, Plaintiff testified to severely limited daily 10 Plaintiff’s credibility (A.R. 34-39). 11 260 F.3d 1044, 1049-50 (9th Cir. 2001) (“Vertigan”) (“the mere fact 12 that a plaintiff has carried on certain daily activities, such as 13 grocery shopping, driving a car, or limited walking for exercise, does 14 not in any way detract from her credibility as to her overall 15 disability”); Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 16 1984) (“Gallant”) (fact that claimant could cook for himself and 17 family members as well as wash dishes did not preclude a finding that 18 claimant was disabled due to constant back and leg pain); see also 19 Burrell v. Colvin, 775 F.3d at 1138 (reversing adverse credibility 20 determination where “the ALJ did not elaborate on which daily 21 activities conflicted with which part of Claimant’s testimony”). 22 Here, the record does not reflect that Plaintiff performed activities 23 which would translate to sustained activity in a work setting on a 24 regular and continuing basis for eight hours a day, five days a week. 25 /// 26 /// 27 /// 28 /// 11 See, e,g., Vertigan v. Halter, 1 See SSR 96-8p (defining scope of residual functional capacity).6 2 3 III. The Court is Unable to Deem the Errors Harmless. 4 5 The Court is unable to conclude that the ALJ’s several errors 6 were harmless. “[A]n ALJ’s error is harmless where it is 7 inconsequential to the ultimate non-disability determination.” 8 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and 9 quotations omitted); see Treichler v. Commissioner, 775 F.3d at 1105 10 (“Where, as in this case, an ALJ makes a legal error, but the record 11 is uncertain and 12 to the agency”); Garcia v. Commissioner, 768 F.3d 925, 932-34 (9th 13 Cir. 2014) (a failure to develop the record is not harmless unless it 14 is “clear from the record” that the error was “inconsequential to the 15 ultimate nondisability determination”; citing Tommasetti v. Astrue, 16 533 F.3d 1035 (9th Cir. 2008)); cf. McLeod v. Astrue, 640 F.3d 881, Molina ambiguous, the proper approach is to remand the case 17 18 19 20 21 22 23 24 25 26 27 28 6 In Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (“Burch”), the Ninth Circuit upheld an ALJ’s rejection of a claimant’s credibility in partial reliance on the claimant’s daily activities of cooking, cleaning, shopping, interacting with others and managing her own finances and those of her nephew. In doing so, the Ninth Circuit did not purport to depart from the general rule that an ALJ may consider daily living activities in the credibility analysis only where “a claimant engages in numerous daily activities involving skills that could be transferred to the workplace.” Id. at 681. Undeniably, however, it is difficult to reconcile the result in Burch with the results in cases like Vertigan and Gallant. Certainly, “the relevance of a claimant carrying on daily activities should be evaluated on a case-by-case basis.” Bloch on Social Security § 3.37 (Jan. 2005). In the present case, in light of the seemingly conflicting Ninth Circuit case law as well as the evidence in the record belying the ALJ’s assertion that Plaintiff’s daily activities are “somewhat normal,” this Court does not believe Burch compels affirmance. 12 1 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 2 determine from the ‘circumstances of the case’ that further 3 administrative review is needed to determine whether there was 4 prejudice from the error”). 5 reasons for an ALJ’s credibility determination does not always require 6 the overturning of that determination. 7 533 F.3d 1155 (9th Cir. 2008). 8 remaining arguably valid stated reasons for the ALJ’s credibility 9 determination do not persuade the Court that the multiple errors in The infirmity of one or two stated See Carmickle v. Commissioner, In the present case, however, the 10 the credibility evaluation were harmless. Moreover, as discussed 11 above, the ALJ’s mischaracterizations of the record went beyond the 12 evaluation of Plaintiff’s credibility. 13 14 IV. Remand for Further Administrative Proceedings is Appropriate. 15 16 Because the circumstances of the case suggest that further 17 administrative review could remedy the ALJ’s errors, remand is 18 appropriate. 19 Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) (remand is an 20 option where the ALJ fails to state sufficient reasons for rejecting a 21 claimant’s excess symptom testimony); but see Orn v. Astrue, 495 F.3d 22 625, 640 (9th Cir. 2007) (appearing, confusingly, to cite Connett for 23 the proposition that “[w]hen an ALJ’s reasons for rejecting the 24 claimant’s testimony are legally insufficient and it is clear from the 25 record that the ALJ would be required to determine the claimant 26 disabled if he had credited the claimant’s testimony, we remand for a 27 calculation of benefits”) (quotations omitted); see also Brown-Hunter 28 v. Colvin, 2015 WL 6684997, at *7-8 (9th Cir. Nov. 3, 2015) McLeod v. Astrue, 640 F.3d at 888; see Connett v. 13 1 (discussing the evidently narrow circumstances in which a court will 2 order a benefits calculation rather than further proceedings); Ghanim 3 v. Colvin, 763 F.3d 1154 (9th Cir. 2014) (remanding for further 4 proceedings where the ALJ failed to state sufficient reasons for 5 deeming a claimant’s testimony not credible); Garrison v. Colvin, 759 6 F.3d 995, 1021 (9th Cir. 2014) (court may “remand for further 7 proceedings, even though all conditions of the credit-as-true rule are 8 satisfied, [when] an evaluation of the record as a whole creates 9 serious doubt that a claimant is, in fact, disabled”); Vasquez v. 10 Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that a court 11 need not “credit as true” improperly rejected claimant testimony where 12 there are outstanding issues that must be resolved before a proper 13 disability determination can be made); see generally INS v. Ventura, 14 537 U.S. 12, 16 (2002) (upon reversal of an administrative 15 determination, the proper course is remand for additional agency 16 investigation or explanation, except in rare circumstances); Treichler 17 v. Commissioner, 775 F.3d at 1101 n.5 (remand for further 18 administrative proceedings is the proper remedy “in all but the rarest 19 cases”). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 14 1 CONCLUSION 2 3 For all of the foregoing reasons,7 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: December 2, 2015. 10 11 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Given the outstanding issues that need to be resolved in the present case, reversal with a directive for the immediate payment of benefits would not be appropriate. See, e.g., Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (“Some people may have such a severe case of fibromyalgia as to be totally disabled from working . . . but most do not. . . .”). 15
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