Keith Van Tran v. Carolyn W Colvin, No. 5:2015cv00671 - Document 18 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is REVERSED and the matter is REMANDED for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Keith Van Tran v. Carolyn W Colvin Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 KEITH VAN TRAN, 12 Plaintiff, v. 13 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 16 ) Case No. EDCV 15-0671 AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 17 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 ORDERED that this matter is remanded for further administrative 20 action consistent with this Opinion. 21 PROCEEDINGS 22 23 On April 8, 2015, Plaintiff filed a Complaint seeking review of 24 25 the 26 Insurance Benefits. (Dkt. No. 1). 27 proceed undersigned 28 denial of before his the Application for Social Security Disability The parties have consented to United 1 States Magistrate Judge. Dockets.Justia.com 1 (Dkt. Nos. 9, 10). 2 and the Administrative Record (“AR”). 3 parties filed a Joint Position Statement (“Joint Stip.”) on November 4 30, 5 Plaintiff’s claims. 2015, setting On August 17, 2015, Defendant filed an Answer forth their (Dkt. Nos. 13, 14). respective positions The regarding (Dkt. No. 17). 6 7 The Court has taken this matter under submission without oral 8 argument. 9 Social Security Case)). C.D. Cal. L.R. 7-15; (Dkt. No. 7 (Order Re: Procedures In 10 11 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 12 13 On January 19, 2012, Plaintiff, formerly employed as a casino 14 dealer from 2001 to 2011 and a cell phone and laptop technologist 15 from 1997 to 2001, (AR 176-78), filed an Application for Disability 16 Insurance Benefits, alleging that he became unable to work because 17 of his disabling condition on June 1, 2011, (AR 144-49). 18 11, 19 testimony from Plaintiff and vocational expert Corinne Porter. 20 32-52). 21 Plaintiff’s application. 2013, Administrative Law Judge (“ALJ”), Marti On October Kirby, heard (AR On November 8, 2013, the ALJ issued a decision denying (AR 18-31). 22 23 After determining that Plaintiff had the severe impairments of 24 rheumatoid arthritis, ankylosing spondylitis and cervical myofascial 25 pain, (see AR 20),1 the ALJ found that Plaintiff had the residual 26 1 27 28 The ALJ found that Plaintiff’s right foot injury was not a severe impairment. 2 1 functional capacity (“RFC”)2 to perform “a range of” “light work”3 2 with the following limitations: 3 4 [T]he claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; he can stand and/or walk for two hours out of an eight-hour workday, but no more than 15 minutes at a time, with regular breaks; he can sit for six hours out of an eight-hour workday, but with brief position changes after approximately 30 to 45 minutes, with regular breaks; he is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; he can perform postural activities on an occasional basis except he cannot climb ladders, ropes, or scaffolds; he cannot work at unprotected heights, around moving machinery, or around other hazards; he cannot perform work requiring hypervigilance or intense concentration on a particular task, meaning he cannot be off task for even the briefest amount of time like watching a surveillance monitor or safety might be an issue; he must avoid concentrated exposure to extreme temperatures and humidity; and he is precluded from fast-paced production or assembly line-type work. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 A claimant’s RFC is what he or she still can do despite existing exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545(a)(1). 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). 3 1 (AR 2 concentration 3 caused by side effects of medication that would affect Plaintiff’s 4 ability 5 course of a workday. 21). In to addition, the limitations, maintain ALJ but determined not concentration a that severe and Plaintiff mental had impairment, hypervigilance during the (Id.). 6 7 The ALJ found that Plaintiff was not able to perform his past 8 relevant work as a casino dealer and technologist, (AR 25), but that 9 jobs existed in significant numbers in the national economy that 10 Plaintiff could 11 Plaintiff would 12 representative occupations identified by the vocational expert, such 13 as 14 Titles (“DOT”) 211.467-030), information clerk (DOT 237.367-018), 15 and 16 concluded 17 meaning of the Social Security Act. the perform. be occupations addresser (DOT that (AR capable of 25-26). of ticket performing seller 209.587.010). Plaintiff was The the 26). under a determined that requirements (Dictionary (AR not ALJ of The of Occupational ALJ disability therefore within the (Id.). 18 19 On December 23, 2013, Plaintiff filed a timely request for the 20 Appeals Council to review the ALJ’s decision. 21 February 13, 2015, the Appeals Council denied Plaintiff’s request 22 for 23 decision 24 Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g). review, of (AR 1-4), and the the Commissioner. ALJ’s (AR 25 26 27 28 4 decision 1). The (AR 12-14). became Court the On final reviews the 1 STANDARD OF REVIEW 2 3 The Court reviews a final decision of the Commissioner of the 4 Social Security Administration to determine if the decision is free 5 of legal error and supported by substantial evidence. 6 Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 7 “Substantial evidence” is more than a mere scintilla, but less than 8 a preponderance. 9 2014). To Brewes v. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. determine whether substantial evidence supports a 10 finding, “a court must consider the record as a whole, weighing both 11 evidence 12 [Commissioner’s] conclusion.” 13 1035 (9th Cir. 2001) (internal quotation omitted). 14 can 15 conclusion, [a court] may not substitute [its] judgment for that of 16 the ALJ.” 17 2006). that reasonably supports support and evidence that detracts from the Aukland v. Massanari, 257 F.3d 1033, either affirming or “If the evidence reversing the ALJ’s Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 18 PLAINTIFF’S CONTENTIONS 19 20 21 Plaintiff alleges that the ALJ erred by (1) improperly 22 considering the relevant medical evidence in the record, including 23 Plaintiff’s 24 capacity 25 Plaintiff’s testimony regarding the severity of his symptoms by (a) 26 failing 27 sufficiently credible, (b) erroneously relying on the conservative 5 28 treating limitations, to specify physician’s (Joint which specific Stip. statements 10); by residual and (2) Plaintiff functional rejecting were not 1 course of treatment prescribed by Plaintiff’s physicians, and (c) 2 improperly relying on a lack of objective medical evidence, (Joint 3 Stip. 20). 4 5 DISCUSSION 6 After reviewing the record, the Court finds that Plaintiff’s 7 8 second claim warrants remand for further consideration. 9 remand is appropriate on the issue of whether the ALJ improperly 10 rejected Plaintiff’s testimony as not credible, the Court declines 11 to 12 considered the relevant medical evidence. consider Plaintiff’s contention that the ALJ Because improperly 13 14 A. The ALJ Erred In Finding Plaintiff’s Statements Describing His Symptoms Not Credible 15 16 In deciding whether to accept a claimant’s subjective symptom 17 18 statements, an ALJ must perform two stages of analysis. 19 ALJ 20 produced 21 determinable impairment reasonably likely to be the cause of the 22 claimant’s subjective symptoms. 23 1281 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th 24 Cir. 1991). 25 objective medical evidence of an underlying impairment that could 26 reasonably 27 alleged, and there is no evidence of malingering, the ALJ may reject 6 28 must conduct objective a threshold medical inquiry evidence whether the establishing First, the claimant a has medically- Smolen v. Chater, 80 F.3d 1273, Second, if the ALJ finds that the claimant has produced be expected to produce the pain or other symptoms 1 the claimant’s testimony regarding the severity of his pain and 2 symptoms only by articulating specific, clear and convincing reasons 3 for doing so. 4 Cir. 2015) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 5 Cir. 2007)); Smolen, 80 F.3d at 1283-84 (citation omitted). Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th 6 7 After describing this two-part inquiry (AR 21-22), the ALJ 8 summarized 9 symptoms Plaintiff’s as follows: testimony (1) regarding Plaintiff could the severity not work of because his of 10 generalized joint pain throughout his body that was most severe in 11 his back, that measured an 8 or 9 on a 10-point pain scale with 12 medication treatment, and that made every movement painful, (AR 22); 13 (2) 14 narcotics to alleviate his pain and Humira injections to treat his 15 arthritis--but these medications did not alleviate his symptoms, (AR 16 22); and (3) “[Plaintiff] could not stand or sit for long periods of 17 time[,] could . . . not lift more than five pounds[,] sometimes 18 needed help dressing, . . . did not sleep” for more than four or 19 five hours a day, and could only sleep in hour blocks of time, (AR 20 22). 21 made in his function report regarding the severity of his symptoms: 22 (1) Plaintiff needed constantly to change positions because of pain; 23 (2) 24 postural activities (e.g., squatting, bending, and kneeling); and 25 (3) Plaintiff had numbness in his hands. treating physicians prescribed medication--i.e., The ALJ also summarized the additional statements Plaintiff Plaintiff had difficulty with 26 27 28 Plaintiff 7 personal care, (AR 22). reaching, and 1 The ALJ found that Plaintiff’s reported subjective symptoms 2 satisfied the first threshold inquiry because Plaintiff’s “medically 3 determinable impairments could reasonably be expected to cause some 4 of the alleged symptoms.” 5 Plaintiff’s 6 symptoms, finding that the “statements concerning the intensity, 7 persistence and limiting effects of [his alleged] symptoms [were] 8 not credible to the extent those statements [were] inconsistent with 9 the residual functional capacity assessment.” subjective (AR 22). statements However, the ALJ rejected regarding the severity of his (Id.). 10 11 The ALJ articulated two reasons to support her finding that 12 Plaintiff’s statements were not credible: 13 evidence and conservative treatments prescribed.4 lack of objective medical With respect to 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Defendant contends that the ALJ’s adverse credibility finding was also based on a third reason: i.e., “several medical opinions that contradicted Plaintiff’s claims of total disability.” (Joint Stip. 22). While the ALJ did, in fact, summarize the medical opinions of the consultative examiner and the state agency physicians, the ALJ did not base her adverse credibility finding on these opinions. The Court cannot affirm an ALJ’s credibility determination based on a reason that the ALJ did not rely on in making that determination. Cf. Burrell v. Colvin, 775 F.3d 1133, 1138-39 (9th Cir. 2014) (explaining that although “[t]he government argues that Claimant’s testimony that she has, on average, one or two headaches a week conflicts with the medical record[,] the ALJ never connected the medical record to Claimant’s testimony about her headaches” and “never stated that he rested his adverse credibility determination on those findings,” and therefore holding that the court cannot conclude that the “history of treatment for headaches is a specific, clear, and convincing reason to support the credibility finding”); see also Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001) (the court “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision”). 8 1 the lack of objective evidence, the ALJ explained that “[a]lthough 2 the claimant alleged pain and functional limitations associated with 3 Rheumatoid arthritis symptoms, . . . there was little evidence of 4 consistent episodes of swelling or reduced range of motion . . . 5 that would be common with rheumatoid arthritis symptoms.” 6 The ALJ further indicated that “[d]iagnostic studies also did not 7 support 8 resulting functional limitations.” 9 that, “[a]s the severity of claimant’s assertions were not supported the 10 by 11 credible.” the alleged medical severity evidence, of his the claimant’s (Id.). (AR 22). symptoms and Thus, the ALJ found allegations were not entirely (Id.). 12 13 With respect to the finding that Plaintiff had only received 14 conservative treatment, the ALJ noted that all of the treatment 15 records revealed that “the claimant received routine, conservative, 16 and non-emergency treatment,” (AR 23), including (1) a January 18, 17 2011, 18 recommendation 19 complaints of back, neck and foot pain and clinical findings of 20 tenderness in those 21 medication to treat 22 findings of lower back tenderness at a July 25, 2011, examination; 23 (4) two physical therapy treatments to address complaints of joint 24 back pain; (5) a January 10, 2012, x-ray examination; and (6) a 25 medication refill to address complaints of back pain and clinical 26 findings spine of and left to remain neck joint off areas at continued and back x-ray; of a June pain for 2, 9 medication four 2011, complained tenderness 27 28 work (2) at a weeks and to treat examination; of and July a (3) clinical 24, 2012, 1 examination. (Id.).5 2 been treated with any surgical interventions and explained that the 3 “lack of more aggressive treatment or surgical intervention suggests 4 the claimant’s symptoms and limitations were not as severe as he 5 alleged.” The ALJ further noted that Plaintiff had not (AR 22). 6 7 1. 8 The ALJ Articulated the Specific Statements That She Found Not Credible 9 10 Plaintiff first contends that the ALJ’s reasons do not satisfy 11 the clear and convincing standard because the ALJ “clearly failed to 12 specify which statements by Plaintiff concerning pain, functional 13 limitations, and other symptoms were not ‘sufficiently credible.’” 14 (Joint Stip. at 20, citing Smolen, 80 F.3d at 1284 (an ALJ “must 15 state specifically which symptom testimony is not credible and what 16 facts in the record lead to that conclusion”)). 17 18 An ALJ is not “‘required to believe every allegation of 19 disabling pain’ or other non-exertional impairment.” 20 495 F.3d 625, 635 (9th Cir. 2007) (quoting Fair v. Bowen, 885 F.2d 21 597, 603 (9th Cir. 1989)). 22 a medical impairment has been established, however, the ALJ must Orn v. Astrue, To discredit a claimant’s testimony when 23 24 5 25 26 27 28 Although the ALJ noted that the “period at issue begins on the alleged onset date of June 1, 2011,” the ALJ, “in order to view the record in the light most favorable to the claimant, . . . read and considered all the medical evidence in the record.” (AR 23). 10 1 provide 2 (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595l 599 3 (9th Cir. 1999)). “‘specific, cogent reasons for the disbelief.’” Id. 4 5 After acknowledging that she was required to “make a finding on 6 the credibility of [Plaintiff’s] statements based on a consideration 7 of 8 Plaintiff’s statements regarding his pain and functional limitations 9 and the entire concluded case that, record,” the “[a]lthough ALJ the specifically claimant identified alleged pain and 10 functional 11 symptoms, 12 evidence.” 13 that “there was little evidence of consistent episodes of swelling 14 or 15 rheumatoid arthritis symptoms,” and that “[d]iagnostic studies also 16 did not support the alleged severity of the claimant’s symptoms and 17 resulting 18 concluded that the subjective symptoms identified by Plaintiff were 19 not credible because the record established that Plaintiff received 20 conservative, 21 inconsistent with 22 specifically identified 23 relied. 24 state specifically which symptom testimony and statements she found 25 not credible and the facts in the record that support that finding. 26 Cf. Smolen, 80 F.3d at 1283-84. limitations his allegations (AR 22). reduced associated range motion . . limitations.” routine the (AR 22-23). not and supported severe the . that (AR by symptoms treatment would 22). non-surgical arthritis the medical be The treatment Plaintiff evidence common ALJ further that reported, upon with which was and she Thus, the ALJ satisfied her obligation to 27 28 rheumatoid The ALJ specifically explained, for example, of functional were with 11 1 2. The ALJ’s Reliance On Conservative Treatment Was Not A 2 Clear And Convincing Reason To Find Plaintiff’s Statements 3 Not Credible 4 5 Plaintiff claims that the ALJ erroneously relied on 6 conservative 7 physicians 8 describing the severity of his symptoms were not credible. 9 Stip. at 19). course to support of treatment her prescribed finding that by the Plaintiff’s Plaintiff’s statements (Joint “Where, as here, the ALJ did not find ‘affirmative 10 evidence’ that the claimant was a malingerer,” the ALJ was required 11 to provide a clear and convincing reason for rejecting Plaintiff’s 12 statements. 13 The ALJ does not cite to any evidence in the record of malingering 14 and therefore the “clear and convincing” standard applies. Orn, 495 F.3d at 635 (quoting Morgan, 169 F.3d at 599). 15 16 Although the ALJ opined that the “lack of more aggressive 17 treatment or surgical intervention suggests the claimant’s symptoms 18 and 19 Plaintiff contends that his treating physician determined that he 20 “is not [a] surgical candidate,” (AR 408 (noting under section for 21 “Complications” that Plaintiff’s condition was “worsening” and that 22 Plaintiff “is not a surgical candidate”)), and hypothesizes that 23 “[m]ost 24 effected [sic] by the ankylosing spondylitis,” (Joint Stip. at 18). 25 Plaintiff 26 surgical procedure that might in any way relieve any of Plaintiff’s 27 symptoms, and [that] no medical professional . . . has made any 12 28 limitations likely, also were this argues not is as severe because that the as his ALJ he entire “has alleged,” spine failed to is (AR 22), severely suggest any 1 [such] suggestion[.]” 2 ALJ “has failed to identify any ‘more aggressive treatment’ which 3 might somehow improve Plaintiff’s conditions or which might be a 4 better form of treatment” than the numerous medications, including 5 narcotic 6 physicians 7 According to Plaintiff, the mere suggestion that the existence of 8 some hypothetical “other form of ‘aggressive’ treatment” renders 9 Plaintiff not credible “simply makes no sense and is inconsistent 10 pain (Id.). medication already have and Plaintiff further asserts that the Humira, prescribed. with the facts in this case.” that Plaintiff’s (Joint Stip. at treating 18-19). (Joint Stip. at 19). 11 12 Defendant asserts that “[w]hile Plaintiff speculates as to why 13 Dr. Lee stated he was not a surgical candidate, that does not change 14 the validity of the ALJ’s finding that the lack of more aggressive 15 treatment or surgical intervention diminished the credibility of 16 Plaintiff’s subjective complaints.” 17 further contends that “it was reasonable for the ALJ to infer that 18 the lack of surgical intervention indicated Plaintiff’s symptoms 19 were not disabling.” (Joint Stip. at 24). Defendant (Id.).6 20 21 22 23 24 25 26 27 28 6 Defendant also argues that the ALJ’s adverse credibility finding is also supported by other evidence of conservative treatment: (1) treatment notes indicating that Plaintiff’s condition generally remained unchanged and treatment providers frequently continued him on the same medication; (2) Plaintiff’s physician recommending routine follow-up as needed; and (3) gaps in Plaintiff’s treatment. While the ALJ summarized the treatment notes and indicated that there was no evidence that the claimant had received treatment between April 30, 2012, and July 24, 2012, (AR 23), the ALJ did not specifically base her adverse credibility finding on these factors. The Court will not affirm the ALJ’s 13 1 Evidence of conservative treatment may be “sufficient to 2 discount 3 impairment,” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 4 (citation omitted), provided that there is substantial evidence in 5 the record to support the ALJ’s finding that Plaintiff’s treatment 6 was conservative. 7 constitutes ‘conservative’ or ‘routine’ treatment.” 8 Colvin, No. 13-CV-3252-JSC, 2014 WL 4629593, *12 (N.D. Cal. Sept. 9 16, 2014). a claimant’s testimony regarding severity of an “There is no guiding authority on what exactly Childress v. It is clear that courts view the use of non-prescription 10 medication as conservative treatment. 11 the ALJ did not err by finding the claimant’s testimony regarding 12 severity of symptoms not credible where the claimant was treated 13 with over-the-counter pain medication); Ritchie v. Astrue, No. EDCV 14 12–311 15 (“[A]lthough plaintiff testified that she was unable to work due to 16 pain in her back and hips, she also stated that she did not ‘like’ 17 narcotics, 18 Tylenol, aspirin or Advil),” which cast doubt on the plaintiff's 19 credibility.); 20 4210628, *7 (D. Or. Sept. 19, 2012) (holding that “conservative 21 treatment” 22 medication”). 23 found the use of medication to control spinal pain, and the absence JC, 2012 and WL took Boyce consisted 3020012, only v. of *5 See, e.g., id. (holding that (C.D. over-the-counter Astrue, No. “crutches, Cal. pain July 24, medication 6:11–CV–06278–SI, ice, and 2012) (i.e. 2012 non-narcotic WL pain Moreover, “[s]everal courts in this circuit have 24 25 26 27 28 decision to discredit Plaintiff’s testimony based upon reasons that ALJ did not specifically articulate. Cf. Burrell v. Colvin, 775 F.3d 1133, 1138-39 (9th Cir. 2014); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001). 14 1 of 2 Childress, 2014 WL 4629593, at *12 (citations omitted). surgery or injections, to be ‘conservative’ treatment.” 3 4 Here, the record contains no evidence that more aggressive 5 treatments 6 Plaintiff’s conditions. 7 use of medication to control spinal pain and the absence of surgery 8 or 9 evidence in the record that surgery or injections were an available or surgical injections is interventions were available options for Cf. id. at *13 (declining to hold that the conservative treatment because “there is no 10 or 11 physicians noted only that surgery was not “indicated,” (AR 333, 12 358, 361), and that Plaintiff was “not [a] surgical candidate,” (AR 13 408 14 condition was “worsening” and that Plaintiff “is not [a] surgical 15 candidate”)). 16 establishing why surgery was not indicated and therefore cannot 17 support an inference that Plaintiff did not require surgery or other 18 invasive 19 Colvin, No. 13-CV-2200 AC, 2014 WL 7336674, *10 (E.D. Cal. Dec. 24, 20 2014) 21 plaintiff’s 22 plaintiff 23 plaintiff did not require surgery or other invasive procedures for 24 his 25 procedures in their examination notes,” and noting that plaintiff 26 only was treated with “a recommendation to utilize hydrotherapy and viable option (noting under Plaintiff’s section to that treat the “Complications” credible, management” his ALJ conservative not for symptoms. did not err treatment as explaining that and “nor did 27 28 condition”). Plaintiff’s that Plaintiff’s However, the record does not contain any evidence procedures (holding pain for 15 a any Compare in basis the Shimer relying “record on the finding for physician v. the shows that suggest such 1 dynamic soft tissue mobilization (‘DSTM’) with a limited number of 2 prescriptions for pain medication”). 3 4 The Court rejects Defendant’s contention that “it was 5 reasonable 6 intervention 7 (Joint Stip. at 24). 8 inference regarding whether more aggressive courses of treatment are 9 available for the ALJ indicated for a to infer Plaintiff’s that the symptoms lack were of not surgical disabling.” An ALJ is not qualified to draw her own claimant’s conditions. See, e.g., Boitnott v. 10 Colvin, No. 12-CV-2977-BTM(DHB), 2016 WL 362348, *4 (S.D. Cal. Jan. 11 29, 12 regarding 13 available) (citing Matamoros v. Colvin, No. 13-CV-3964-CW, 2014 WL 14 1682062, *4 (C.D. Cal. Apr. 28, 2014)); see also Social Security 15 Ruling (“SSR”) 96-7P (July 2, 1996) (providing that a claimant’s 16 “statements 17 treatment 18 cautioning that the “adjudicator must not draw any inferences about 19 an individual’s symptoms and their functional effects from a failure 20 to 21 considering any explanations that the individual may provide, or 22 other information in the case record, that may explain infrequent or 23 irregular medical visits or failure to seek medical treatment”).7 2016) seek (an ALJ whether may is or be is not more less aggressive credible inconsistent pursue qualified with regular to draw courses if the medical the his of level level of treatment own inference treatments or were frequency complaints” without of but first 24 25 26 27 28 7 An ALJ’s reasons for rejecting a claimant’s subjective evidence of his symptoms must comport with SSR 96–7p, which, among other things, explains the factors to consider in assessing the credibility of a claimant’s statements about pain and other 16 1 Here, the ALJ simply assumed that surgery was not indicated 2 because Plaintiff’s condition and symptoms were not sufficiently 3 severe to warrant surgical intervention. 4 however, 5 Plaintiff’s condition did not warrant surgical intervention. 6 contrary, the only evidence before the Court suggests that surgical 7 intervention 8 intervention was not warranted because Plaintiff’s condition and/or 9 symptoms were not sufficiently severe. that any was physician not an determined available There is no evidence, that option, the not severity that of To the surgical Plaintiff testified that 10 surgery was not indicated because it could not be done. 11 (Plaintiff asked the specialist whether surgery was available “but 12 she said cannot [do] surgery” “on [his] situation]” and the primary 13 care physician said “cannot do it, cannot do the surgery either”)). (AR 44 14 15 There is no evidence in the record to support the ALJ’s finding 16 that surgery or more aggressive treatments were available options to 17 treat Plaintiff’s conditions, and the ALJ was not qualified to draw 18 her 19 Therefore, the absence of more aggressive treatments or surgical 20 intervention was not a clear and convincing reason to discount the 21 credibility of Plaintiff’s statements regarding his symptoms and the own inference regarding the availability of such options. 22 23 24 25 26 27 28 symptoms. Orn v. Astrue, 495 F.3d 625, 635-36 (9th Cir. 2007); Durham v. Apfel, No. CV-98-1422-ST, 1999 WL 778243, *16 (D. Or. Sept. 22, 1999). “Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, . . . and are to be relied upon as precedent in adjudicating cases.” Orn, 495 F.3d at 635 (citing 67 Fed. Reg. at 57860)) (additional citation omitted). 17 1 severity of his pain. 2 (explaining that “there is no evidence in the record that surgery or 3 injections 4 condition” and therefore concluding that “in light of the ALJ’s 5 failure 6 conservative treatment options, . . . this factor does not have any 7 bearing on Plaintiff’s credibility”); Lapeirre-Gutt v. Astrue, 382 8 F. App’x 662, 664 (9th Cir. 2010) (explaining that, “[e]ven assuming 9 Lapeirre-Gutt’s regimen of powerful [narcotic] pain medications and 10 [occipital nerve blocks and trigger point] injections can constitute 11 ‘conservative treatment,’” “the record does not reflect that more 12 aggressive treatment options are appropriate or available,” and “[a] 13 claimant 14 conservative 15 omitted). were to an available identify cannot Cf. Childress, 2013 WL 2643305, at *13 be . . . or viable how there discredited treatment options for where option are Plaintiff’s alternative failing none for to less- pursue exist”) non- (citations 16 17 Moreover, it is not at all obvious to this Court that 18 consistent treatment (over two years), including referrals to a 19 specialist,8 20 medications, of Plaintiff’s increasingly strong conditions narcotic with, pain among other medications9 and 21 22 23 24 25 8 Plaintiff sought treatment from his primary care physician in 2011 almost monthly, (AR 234-44, 387-94), in 2012 from either his primary care physician or a specialist physician anywhere between every month to every three months (299-300, 269-72, 386), and in 2013 from his primary care or specialist physicians monthly, (AR 307-13, 324-34, 350-52, 357-62). 26 9 27 28 Plaintiff’s primary care physician initially prescribed Norco in early 2011, (AR 234-44, 299-300, 311-12, 349), and at the 18 1 Humira, (AR 324-33, 350-52, 357-362), as well as anti-inflammatory 2 drugs and physical therapy, is “conservative” treatment. 3 96-7P (explaining that “a longitudinal medical record demonstrating 4 an individual’s attempts to seek medical treatment for pain or other 5 symptoms and to follow that treatment once it is prescribed lends 6 support to an individual’s allegations of intense and persistent 7 pain or other symptoms,” and that “[p]ersistent attempts by the 8 individual to obtain relief of pain or other symptoms, such as by 9 increasing medications [and] referrals to specialists, . . . may be 10 a strong indication that the symptoms are a source of distress to 11 the 12 allegations of intense and persistent symptoms”). individual and generally lend support to an Cf. SSR individual’s 13 14 There is no evidence that Plaintiff failed to follow a course 15 of treatment for his conditions, that additional or more intensive 16 or aggressive treatments or surgery were recommended or available to 17 treat 18 treatments 19 specialist, and physical therapy were conservative. 20 such evidence fails to support the ALJ’s finding that Plaintiff’s 21 course of prescribed treatment indicated that Plaintiff’s symptoms 22 were not as severe as he alleged. 23 *12 (ordering remand because the ALJ was not entitled to rely upon 24 Plaintiff’s treatment with narcotics as “conservative” to support 25 26 27 28 Plaintiff’s of conditions, narcotic pain or that medications, Plaintiff’s Humira, prescribed referral to a The absence of Cf. Childress, 2014 WL 4629593, beginning of 2013 prescribed Percocet instead of Norco, (AR 307-09). The treatment records further establish that Plaintiff’s specialist physician recommended continued treatment with Percocet throughout 2013. (AR 324-34, 350-52, 357-62). 19 1 the adverse credibility finding when it was “not obvious” on the 2 record that “the consistent use of such a narcotic (for several 3 years) 4 testimony”); Boitnott, 2016 WL 362348, *4 (explaining “[t]here was 5 no medical testimony at the hearing or documentation in the medical 6 record 7 treatment of [the plaintiff’s] conditions,” and that the ALJ “was 8 not 9 aggressive 10 is ‘conservative’ that the qualified or prescribed to courses draw of his in conflict medication own were Plaintiff’s constituted inference treatments with ‘conservative’ regarding available pain whether for more Plaintiff’s conditions”). 11 12 Moreover, at the hearing, the ALJ did not endeavor to develop 13 the record regarding the availability of less-conservative treatment 14 options 15 treatment options 16 prescribed treatment 17 therefore concludes that conservative treatment was not a clear and for Plaintiff’s were was conditions, not why recommended, routine and these and more why conservative.10 aggressive Plaintiff’s The Court 18 19 20 21 22 23 24 25 26 27 28 10 An ALJ in a social security case has an independent “‘duty to fully and fairly develop the record and to assure that the claimant’s interests are considered.’” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). The ALJ’s duty to develop the record is triggered only when there is “ambiguous evidence” or when “the record is inadequate to allow for proper evaluation of the evidence[.]” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The ALJ may discharge this duty in several ways, including (1) subpoenaing the claimant’s physicians, (2) submitting questions to the claimant’s physicians, (3) continuing the hearing, or (4) keeping the record open after the hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998); Smolen, 80 F.3d at 1288. 20 1 convincing 2 Plaintiff’s 3 symptoms not credible. reason supported subjective by substantial statements evidence describing his for pain finding and other 4 5 3. The ALJ’s Reliance On A Lack Of Medical Evidence Was Not A 6 Clear And Convincing Reason To Find Plaintiff’s Statements 7 Not Credible 8 9 Plaintiff argues that the ALJ erroneously relied upon a lack of 10 objective medical evidence to support her finding that Plaintiff’s 11 statements 12 credible. 13 of objective medical evidence cannot, by itself, support an adverse 14 credibility finding. 15 Cir. 2001). describing the (Joint Stip. 20). severity of his symptoms were not Plaintiff properly notes that the lack Rollins v. Massanari, 261 F.3d 853, 857 (9th 16 17 Because the Court has concluded that conservative treatment was 18 not a clear and convincing reason to find Plaintiff’s statements not 19 credible, 20 Plaintiff’s credibility is a lack of objective medical evidence. 21 a matter of law, the lack of objective medical evidence, standing 22 alone, 23 claimant’s subjective statements regarding the severity of his pain 24 and other symptoms not credible. 25 /// 26 /// 27 /// 28 the cannot sole be a remaining clear and ground on which convincing 21 the reason ALJ for rejected finding As a 1 B. The ALJ’s Error Was Not Harmless 2 3 The ALJ’s stated reasons--i.e., conservative treatment and a 4 lack of objective medical evidence--do not constitute clear and 5 convincing reasons for finding Plaintiff’s statements describing his 6 pain and other symptoms not credible. The Court must determine 7 whether to 8 credibility finding with substantial evidence was harmless. 9 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (explaining 10 that harmless error principles apply in the Social Security context) 11 (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 12 Cir. 2006)). 13 ‘inconsequential to the ultimate nondisability determination.’” 14 (citing Carmickle v. Comm’r Soc. Sec. Admin., 466 F.3d 880, 885 (9th 15 Cir. 2006)) (additional citations omitted). the ALJ’s error of failing support her adverse Cf. Generally, “an ALJ’s error is harmless where it is Id. 16 17 The Court cannot conclude that the ALJ’s adverse credibility 18 finding constituted harmless error. 19 directly relevant to assessing his limitations and, in turn, his 20 RFC. 21 contributing 22 McCawley v. Astrue, 423 F. App’x 687, 689 (9th Cir. 2011) (quoting 23 SSR 96—5p). Here, the ALJ assessed Plaintiff with an RFC to perform 24 a light 25 determination 26 adjustment to other work that exists in significant numbers in the 27 national economy. 28 range A claimant’s of to the that RFC “may final work, and Plaintiff . be . . this is Plaintiff’s credibility was the decision RFC was capable (AR 25-26). most of critical about finding disability.” central to making a the ALJ’s successful Thus, the ALJ’s error was not 22 1 “inconsequential 2 Carmickle, 466 F.3d at 885, and the Court declines to deem the error 3 harmless. to the ultimate disability determination,” 4 5 C. Remand For Additional Evidence Is Warranted 6 7 Whether to remand for further proceedings or to remand for an 8 immediate award 9 discretion. Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000). 10 “Remand further 11 enhancement of the record would be useful.” 12 379 F.3d 587, 593 (9th Cir. 2004). 13 purpose would be served by further administrative proceedings, or 14 where the record has been fully developed, it is appropriate for the 15 Court to exercise its discretion to direct an immediate award of 16 benefits. 17 further 18 proceedings.”). for of benefits is within administrative the proceedings district is court’s appropriate if Benecke v. Barnhart, Conversely, where no useful Id. at 1179 (“[T]he decision of whether to remand for proceedings turns upon the likely utility of such 19 20 Here, the circumstances of the case suggest that further 21 administrative review could remedy the Commissioner’s errors. 22 supra at 16-20. Thus, remand for further administrative proceedings 23 is appropriate. On remand, the ALJ must endeavor to develop the 24 25 26 record with regard to whether Plaintiff’s prescribed treatment was routine or conservative, whether more aggressive treatment options including surgery were available to treat Plaintiff’s conditions, 27 28 See 23 1 and, if so, why these more aggressive treatment options were not 2 recommended. 3 ALJ must develop the record if evidence is inadequate to determine 4 disability). See Tonapetyan, 242 F.3d at 1150 (explaining that an 5 6 7 The Court declines to rule on Plaintiff’s claim that the ALJ failed to consider the relevant medical evidence in the record, 8 including 9 functional capacity limitations. Plaintiff’s treating physician’s specific (Joint Stip. at 10). residual Because this 10 matter is being remanded, this issue also should be considered on 11 remand. 12 13 ORDER 14 15 For the foregoing reasons, the decision of the Commissioner is 16 REVERSED and the matter is REMANDED for further proceedings pursuant 17 to Sentence 4 of 42 U.S.C. § 405(g). 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 22 23 Dated: March 8, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 24
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