Reynaldo Segura v. Carolyn W. Colvin, No. 5:2015cv01311 - Document 18 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Reynaldo Segura v. Carolyn W. Colvin Doc. 18 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 11 12 REYNALDO SEGURA, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) No. ED CV 15-1311 AS ) ) ) ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 I. PROCEEDINGS 23 24 In 25 2011, Plaintiff insurance Renaldo 26 disability 27 beginning December 15, 2008. 28 2013, Administrative benefits Law Segura based (“Plaintiff”) on a disabling (AR 69, 205, 290). Judge (“ALJ”) applied Joseph for condition On September 4, D. Schloss heard 1 Dockets.Justia.com 1 testimony 2 Francis, and vocational expert (“V.E.”) Joseph H. Torres. 3 58). 4 written decision. 5 the ALJ’s decision. from Plaintiff, medical expert (“M.E.”) Dr. Anthony J. (AR 36- On September 19, 2013, the ALJ denied Plaintiff benefits in a (AR 20-30). The Appeals Council denied review of (AR 1-4). 6 7 On July 2, 2015, Plaintiff filed a Complaint pursuant to 8 42 U.S.C. §§ 405(g) and 1383(c)(3) alleging that the Social Security 9 Administration erred in denying benefits. (Docket Entry No. 1). On 10 November 4, 2015, Defendant filed an Answer to the Complaint, (Docket 11 Entry 12 (Docket Entry No. 13). 13 a United States Magistrate Judge. 14 March 8, 2016, the parties filed a Joint Stipulation (“Joint Stip.”) 15 setting 16 (Docket Entry No. 17). No. 12), forth and the their Certified Administrative Record (“AR”), The parties have consented to proceed before respective (Docket Entry Nos. 9, 10). positions on Plaintiff’s On claims. 17 II. SUMMARY OF TESTIMONY AND ALJ’S DECISION 18 19 At 20 the September 4, 2013 hearing, the M.E. testified that 21 Plaintiff suffered from lumbar and sacral radiculopathy on or about 22 the 2010, and 23 continued to suffer from “persistent radiculopathy” after that. (AR 24 40-41). 25 while lifting heavy rebar, which caused lumbar radiculopathy and a 26 herniated nucleus pulposus (disc). 27 steroid injection that afforded him relief for about a week. 28 40). alleged onset date, underwent fusion surgery in The M.E. noted that Plaintiff was injured in August 2008 In 2013, Plaintiff was “a 2 (AR 40). candidate Plaintiff had one for a spinal (AR cord 1 stimulator.” 2 in 3 involving “failed spinal surgery” severe enough to merit spinal cord 4 stimulation are generally cases in which the claimant’s impairments 5 meet Listing 1.04A, Disorders of the Spine. 6 opined that Plaintiff would probably be unable to work at a sedentary 7 level because his was a “failed spinal surgery case with a continued 8 radiculopathy,” although the M.E. also stated that he was unable to 9 point to “something in this case that says” that Plaintiff was unable 10 (AR 41). Plaintiff’s to work. records The M.E. stated that there were “no opinions” that Plaintiff could not work, but (See AR 42). cases The M.E. (AR 43). 11 12 Plaintiff then testified as follows: he has “problems” bending, 13 stooping, sitting for a long 14 pushing, and pulling. 15 all the way down his legs and numbness in his left foot. 16 Plaintiff’s “daily routine” involves washing dishes, but even the 17 “little bit of pivoting” involved in washing dishes causes his back 18 to “turn[] into a pretzel.” 19 while and “ice it” but he cannot sit very long because his legs 20 “start to pinch,” and the “pinch” is “an ongoing thing all day long 21 any time [he does] something.” 22 between five and thirty minutes before needing to stand: about four 23 days of the week, he can only sit for about ten minutes. 24 Plaintiff can stand for thirty minutes or walk about two blocks 25 before needing to rest for thirty to sixty minutes. (AR 44). time, standing, walking, reaching, He has pain in his lower back and (AR 44). (AR 44). He then has to sit down for a (AR 44). Plaintiff can sit for (AR 45-46). (AR 46-47). 26 27 Plaintiff can clean his bathtub, toilet, counter, and sinks for 28 about twenty minutes before needing to sit for about an hour to apply 3 1 ice or heat. 2 enough that his wife has to help him dress. 3 bend enough to touch his knees without difficulty and lift twenty 4 pounds, although not repeatedly, without injury. 5 gets five hours of sleep per night and naps thirty minutes or an hour 6 every day. (AR 49). 7 a (AR 8 hydrocodone, for his pain; the medication “cloud[s]” his pain but 9 does not “take it away,” and it makes him constipated, sick to his 10 week. (AR 47). About once a week, Plaintiff’s pain is severe (AR 47). Plaintiff can (AR 48). Plaintiff Plaintiff drives for thirty minutes about twice 53). Plaintiff has stomach, irritable, and depressed. taken medication, including (AR 50). 11 In 12 response to hypotheticals posed by the ALJ, the V.E. 13 testified that there were jobs existing in significant numbers in the 14 national economy for: (1) a forty-six-year-old individual limited to 15 a complete range of light work; and (2) a person able to perform a 16 complete 17 scaffolds; no working at heights; no vibratory tools or instruments; 18 no dangerous, moving machinery; no unprotected heights . . . can 19 stand and walk 30 minutes at a time, for a total of 6 hours in each 20 category; can sit 6 hours, 30 minutes at a time; and can lift and 21 carry ten pounds occasionally, frequently less than ten pounds; push 22 and pull is occasional with the lower extremities; no limitations on 23 the upper extremities; occasionally can climb ramps, stairs, bend 24 stoop, kneel, crouch; no squatting and no crawling.” range of sedentary work except “no ladders, ropes or (AR at 55-57). 25 The ALJ applied the five-step process in evaluating Plaintiff’s 26 27 case. (AR 20-22). At step one, the ALJ determined that Plaintiff 28 had not engaged in substantial gainful activity after the alleged 4 1 onset date. 2 the following severe impairment: lumbar radiculopathy status post 3 fusion. 4 to be non-severe. 5 Plaintiff’s impairments did not meet or equal a listing found in 20 6 C.F.R. Part 404, Subpart P, Appendix 1. (AR 22). (AR 22). At step two, the ALJ found that Plaintiff had The ALJ found Plaintiff’s obesity and depression (AR 23). At step three, the ALJ found that (AR 24). 7 8 The 9 ALJ capacity found (“RFC”) that to Plaintiff perform sedentary with for a total of six hours in an eight-hour workday with customary 13 breaks, but no more than 30 minutes at a time; sit for a total of six 14 hours in an eight-hour workday with customary breaks, but no more 15 than 30 minutes at a time; and push and/or pull with the lower 16 extremities on an occasional basis with his lower extremities within 17 the 18 limitations 19 extremities; 20 bending, stooping, kneeling, or crouching; no squatting, crawling, or 21 climbing 22 heights, around dangerous and/or moving machinery, or with vibratory 23 tools or instruments. 24 found that, although Plaintiff’s medically determinable impairments 25 could 26 testimony regarding the intensity, persistence, and limiting effects 27 of his symptoms was not entirely credible. on pushing and/or occasional ladders, reasonably climbing ropes, be pulling or of (AR 24). expected and/or with ramps scaffolds; carry following 12 lifting and/or the occasionally and less than 10 pounds frequently; stand and/or walk for lift work functional 11 provided to residual additional limits able the 10 weight limitations: had no carrying, the and 10 bilateral stairs; working at pounds but no upper occasional unprotected In making this finding, the ALJ to cause 28 5 his symptoms, (AR 25). Plaintiff’s 1 At steps four and five, the ALJ determined that Plaintiff could 2 not return to his past work, but he could perform jobs existing in 3 significant 4 assembler 5 determined that Plaintiff was not disabled within the meaning of the 6 Social Security Act. numbers and in table the national worker. (AR economy, 28-30). including The ALJ that of accordingly (AR 30). 7 8 III. STANDARD OF REVIEW 9 10 This court reviews the Commissioner’s decision to determine if 11 the decision is free of legal error and supported by substantial 12 evidence. 13 1157, 1161 (9th Cir. 2012). 14 mere scintilla, but less than a preponderance. 15 759 F.3d 995, 1009 (9th Cir. 2014). 16 evidence supports a finding, “a court must consider the record as a 17 whole, 18 detracts 19 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 20 omitted). 21 either affirming or reversing the ALJ’s conclusion, [a court] may not 22 substitute [its] judgment for that of the ALJ.” 23 Admin., 466 F.3d 880, 882 (9th Cir. 2006). 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d weighing from both the “Substantial evidence” is more than a evidence Garrison v. Colvin, To determine whether substantial that [Commissioner’s] supports and conclusion.” evidence Aukland that v. As a result, “[i]f the evidence can reasonably support 6 Robbins v. Soc. Sec. 1 IV. PLAINTIFF’S CONTENTIONS 2 3 Plaintiff contends that the ALJ improperly 4 testimony and improperly found him not credible. 5 considered his 12). (Joint Stip. at 3- 6 7 V. DISCUSSION 8 9 10 After reviewing the record, the Court finds that Plaintiff’s claim warrants a remand for further consideration. 11 12 A. The ALJ Erred in Rejecting Plaintiff’s Testimony as Not Credible 13 14 A claimant initially must produce objective medical evidence 15 establishing a medical impairment reasonably likely to be the cause 16 of his subjective symptoms. 17 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 18 1991). 19 underlying impairment that could reasonably be expected to produce 20 pain 21 malingering, the ALJ may reject the claimant’s testimony regarding 22 the severity of his pain and symptoms only by articulating specific, 23 clear and convincing reasons for doing so. 24 806 F.3d 487, 493 (9th Cir. 2015) (citing Lingenfelter v. Astrue, 504 25 F.3d 1028, 1036 (9th Cir. 2007)); see also Smolen, 80 F.3d at 1281; 26 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Light v. Social 27 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Smolen v. Chater, 80 F.3d 1273, 1281 Once a claimant produces objective medical evidence of an or other symptoms alleged, 28 7 and there is no evidence of Brown-Hunter v. Colvin, In this case, 1 because 2 convincing reasons” standard applies. there is no evidence of malingering, the “clear and 3 4 5 The ALJ gave the following reasons for finding Plaintiff’s testimony not credible: 6 7 [Plaintiff] 8 activity due to his back pain and numbness in his feet. He 9 alleged testified he has he is unable difficulties to with engage bending, in work stooping, 10 pushing, pulling, and sitting and walking for a prolonged 11 period despite ongoing treatment. He contended even simple 12 chores, such as washing the dishes[,] cause back pain. He 13 asserted that he is able to sit for about 15 minutes and 14 walk for about 30 minutes at a time. 15 admitted he can mop, clean bathtubs and toilets, wash the 16 dishes, and drive. At the same time, he 17 18 The 19 Questionnaire, completed by [Plaintiff] in [sic] December 20 27, 21 bending and stooping, and that he is unable to walk for a 22 prolonged period due to his back pain. Yet, he admitted he 23 is able to perform household chores, shop, and drive. [ALJ] 2011. has read [Plaintiff] and considered alleged he has the Exertion difficulties with 24 25 After 26 finds that [Plaintiff’s] medically determinable impairments 27 could reasonably be expected to cause the alleged symptoms; 28 however, [Plaintiff’s] statements concerning the intensity, careful consideration of 8 the evidence, the [ALJ] 1 persistence and limiting effects of these symptoms are not 2 entirely 3 decision. [. . .] credible for the reasons explained in this 4 5 [Plaintiff’s] 6 work-related injury in August of 2008 when he felt a pinch 7 in his left lower extremity while squatting and lifting off 8 the ground. . . . [Plaintiff] was treated conservatively 9 with treatment physical notes therapy, show that chiropractic he sustained adjustments, 10 epidural injections. 11 a and failed, he underwent a fusion surgery in July of 2010. However, when conservative treatment 12 13 Even after the surgery, he made persistent complaints of 14 pain, 15 findings 16 benign. . . . [Plaintiff’s] treating chiropractor indicated 17 that 18 adjustments, physical therapy, and oral medications. tingling, from and the [Plaintiff] numbness physical would in his legs. examinations be treated However, were with generally chiropractic 19 20 Recent 21 [Plaintiff’s] symptoms. . . . In fact, [Plaintiff] reported 22 that he stopped taking oral medications for pain relief. 23 Yet, his doctor suggested [a] spinal cord stimulator trial, 24 although it is unclear if [Plaintiff] did in fact undergo a 25 spinal cord stimulator trial. physical examinations revealed improvement in 26 27 In 28 complete February of 2012, consultative Robert Nguyen, internal 9 M.D., medicine conducted evaluation a of 1 [Plaintiff]. 2 motion of [Plaintiff’s] back was restricted and that he was 3 unable 4 Otherwise, 5 within normal limits. A physical examination revealed the range of to stretch his findings legs from the in a supine physical position. examination were 6 7 In 8 credibility of each person who gives evidence, either by 9 testimony during the hearing or by pre-hearing statements arriving at a decision, the [ALJ] must assess the 10 or 11 credibility, the [ALJ] considers a number of factors and 12 utilize [sic] those factors that are relevant to his claim 13 and that are applicable to his credibility. 14 the [ALJ] finds the [Plaintiff’s] allegations are less than 15 fully credible. reports. When the [ALJ] assess each person’s As a result, 16 17 Despite 18 somewhat normal level 19 [Plaintiff] admitted activities of daily living, including 20 performing household chores, such as cleaning the bathtub, 21 cleaning the toilet, and mopping; shopping; and driving. 22 Some 23 interactions required to perform these activities are the 24 same 25 employment. [Plaintiff’s] ability to participate in such 26 activities undermined the credibility of [his] allegations 27 of disabling functional limitations. of as his impairments, the of those physical [Plaintiff] daily and necessary activity mental for 28 10 has engaged and abilities obtaining and in a interaction. and social maintaining 1 [Plaintiff] has not generally received the type of medical 2 treatment 3 individual. Although [Plaintiff] has received treatment for 4 the allegedly disabling impairment, that treatment has been 5 essentially routine and conservative in nature. one would expect for a totally disabled 6 7 After his fusion surgery, [Plaintiff] was treated with oral 8 medications, 9 therapy. chiropractic adjustments, and physical The lack of a more aggressive treatment, surgical 10 intervention, or even a referral to a specialist since his 11 fusion 12 limitations are 13 credibility of 14 severity of 15 because those 16 light of the objective evidence of record. surgery suggests not as [Plaintiff’s] severe [Plaintiff’s] his as symptoms and he alleges. The allegations regarding the symptoms and limitations allegations are greater is than diminished expected in 17 18 [Plaintiff] underwent fusion surgery in July of 2010 for 19 the 20 his/her [sic] symptoms were genuine. 21 normally weigh in [Plaintiff’s] favor, it is offset by the 22 fact 23 generally successful in relieving the symptoms. With time, 24 [Plaintiff’s] 25 findings from physical examinations. 26 [Plaintiff] alleged back pain that radiated down to his 27 lower extremities. Muscle atrophy is a common side effect 28 of prolonged and/or chronic pain due to lack of use of a alleged that impairment, the record symptoms which certainly reflects improved, 11 suggests that While that fact would that as the surgery evidenced by was the 1 muscle in order to avoid pain. There is no evidence of 2 atrophy 3 inferred that although [Plaintiff] experienced some degree 4 of pain in his back and lower extremities, the pain has not 5 altered his use of those muscles to an extent that has 6 resulted in atrophy. in [Plaintiff’s] lower extremities. It can be 7 8 [Plaintiff] alleged he has difficulty concentrating. The 9 [ALJ] observed her [sic] throughout the hearing. He did not 10 demonstrate or manifest any difficulty concentrating during 11 the hearing. During the time when he was being questioned, 12 he appeared to process the questions without difficulty, 13 and to respond to the questions appropriately and without 14 delay. He also pain attention throughout the hearing. While 15 the Administrative Law Judges are not free to accept or 16 reject 17 personal 18 considered in the overall evaluation of credibility. a claimant’s allegations observations, such solely on the observations basis of should be 19 20 (AR at 25-27 (citations omitted)). 21 22 In challenging the ALJ’s decision, Plaintiff alleges, inter 23 alia, 24 substantiated 25 treatment was not “routine and conservative,” as he underwent fusion 26 surgery and expressed interest in a spinal cord stimulator trial; (3) 27 the M.E. testified that he would not be able to perform sedentary 28 work; and (4) the mere fact that Plaintiff engaged in household that: (1) the by severity objective of a medical 12 claimant’s evidence; pain (2) need not be Plaintiff’s 1 chores, shopping, and driving does not warrant a finding that he is 2 able to work. 3 ALJ’s 4 activities, 5 symptoms, 6 extremities, 7 during the hearing. 8 agree. (Joint Stip. at 5-12). credibility the the finding success lack and of was of proper based surgery evidence Plaintiff’s Defendant contends that the of in Plaintiff’s alleviating atrophy ability on to in Plaintiff’s Plaintiff’s concentrate daily and lower respond (Joint Stip. at 12-15). The Court does not 9 10 The ALJ overstates the degree to which Plaintiff’s daily 11 activities are consistent with the abilities necessary to secure and 12 maintain employment. 13 generally 14 before 15 Plaintiff also naps for up to an hour every day and drives only twice 16 a week for about half an hour each time. 17 and intensity of Plaintiff’s activities provide very little evidence 18 that Plaintiff can secure and maintain employment or that Plaintiff’s 19 pain is not as severe as he suggests. 20 repeatedly asserted, “the mere fact that a plaintiff has carried on 21 certain daily activities, such as grocery shopping, driving a car, or 22 limited walking for exercise, does not in any way detract from her 23 credibility as to [his] overall disability. 24 utterly incapacitated in order to be disabled.” 25 260 F.3d 1044, 1050 (9th Cir. 2001) (finding “only a scintilla” of 26 evidence supporting ALJ’s adverse credibility finding where claimant 27 was able to go grocery shopping with assistance, walk approximately 28 an hour in the mall, get together with friends, play cards, swim, perform requiring For example, Plaintiff testified that he can household a break chores lasting 13 for up twenty to an to thirty hour. (AR 49, 53). (AR minutes 44, 47). The duration As the Ninth Circuit has One does not need to be Vertigan v. Halter, 1 watch television, read, undergo physical therapy, and exercise at 2 home); see also Reddick, 157 F.3d at 722 (activities of daily living 3 affect a claimant’s credibility “[o]nly if the level of activity [is] 4 inconsistent with the [c]laimant’s claimed limitations”; ALJ erred by 5 “not fully accounting for the context of materials or all parts of 6 the 7 material that was “not entirely accurate regarding the content or 8 tone of the record”). testimony and reports,” resulting in paraphrasing of record 9 10 The ALJ also erred in characterizing Plaintiff’s post-surgical 11 treatment as “routine and conservative” simply because it consisted 12 primarily of “chiropractic adjustments, physical therapy, and oral 13 medications.” 14 Norco, which contains hydrocodone, for an extended period after his 15 surgery. 16 is a narcotic pain reliever that is not generally characterized as 17 “routine” or “conservative” treatment. 18 3121315 at *4 (C.D. Cal. 2013); Hill v. Colvin, 2013 WL 3866768 at *7 19 (C.D. 20 meaningfully address why Plaintiff would have contemplated spinal 21 cord 22 chiropractic 23 Although, as the ALJ notes, Plaintiff reported in February 2013 that 24 25 26 27 28 (AR 26-27). For example, Plaintiff was prescribed (See, e.g., AR 718, 755; see also id. at 50). Cal. 2013) stimulation (collecting therapy1 adjustments, if See Lasane v. Colvin, 2013 WL cases). his physical 1 Hydrocodone pain The were therapy, ALJ well and also does controlled oral not with medications. Spinal cord stimulation therapy involves placing electrodes under a patient’s skin “into the space on top of [his] spinal cord” and connecting them to a small current generator outside the patient’s body. If an initial trial electrode reduces the patient’s pain “by 50% or more,” a permanent generator may be installed. Spinal Cord Stimulation, Medical Encyclopedia, U.S. National Library of Medicine, available at https://www.nlm.nih.gov/medlineplus/ency (visited May 6, 2016). 14 1 he had stopped taking medications entirely, (AR 26, 746), Plaintiff 2 still 3 visit, (AR 746-48). 4 taking 5 constipation, 6 stopped taking Norco due to its side effects rather than because his 7 pain 8 information about spinal cord stimulation therapy which suggests that 9 his pain was not well controlled with the treatment he was currently 10 receiving. See Gambrell v. Comm’r, Soc. Sec. Admin., 2015 WL 2168717 11 at *2 (D. Md. 2015) (“Although the ALJ accurately stated that . . . 12 certain medications provided ‘some’ and/or ‘significant’ pain relief, 13 the ALJ completely ignored . . . simultaneous statements documenting 14 soreness, weakness, tenderness, worsening pain, current pain at 7/10 15 and 8/10, discomfort with certain movements, and failed conservative 16 treatments. 17 significant, does not necessarily equate with adequate control of 18 pain. If [claimant’s] pain was controlled with medications, it is 19 unclear why her pain management physician would have continued to 20 perform injections and hardware blocks, or why he would recommend a 21 spinal cord stimulation trial.”). complained Norco had of, and treatment for, pain during that One month later, Plaintiff reported that he was again, (AR sought but 755), lessened. Temporary also reported suggesting At the relief that same of that he may meeting, pain from Norco have caused him temporarily Plaintiff medications, received even if 22 23 The ALJ also erred in relying on the absence of muscle atrophy 24 to support his credibility finding. 25 free to resolve issue of credibility as to lay testimony or to choose 26 between properly submitted medical opinions, he is not free to set 27 his own expertise against that of a physician who [submitted an 28 opinion to or] testified before him.” McBrayer v. Sec’y of Health & 15 (AR 27). “[W]hile an [ALJ] is 1 Human Servs., 712 F.2d 795, 799 (2d Cir. 1983); see also Tackett v. 2 Apfel, 180 F.3d 1094, 1102–03 (9th Cir. 1999) (ALJ improperly relied 3 on 4 opinions); Gonzalez Perez v. Sec’y of Health & Human Servs., 812 F.2d 5 747, 6 layman’s opinion for the findings and opinion of a physician....”). his 749 interpretation (1st Cir. of 1987) Plaintiff's (“The ALJ testimony may not over medical substitute his own 7 8 Here, although the ALJ cited medical evidence indicating that 9 Plaintiff’s strength and muscle mass were normal, (AR 696-700), the 10 ALJ cited no evidence that the absence of atrophy was inconsistent 11 with 12 admitted that he was not confined to his bed or otherwise unable to 13 walk or move. 14 1999) (ALJ permissibly discounted claimant’s complaint that her pain 15 required her to “lie in a fetal position all day” because she “did 16 not 17 inactive, totally incapacitated individual”); see also Lapeirre-Gutt 18 v. Astrue, 382 F. App’x 662, 665 (9th Cir. 2010) (ALJ’s reliance on 19 lack 20 sugest[ed] that high inactivity levels necessarily lead to muscle 21 atrophy”); Winans v. Colvin, 2014 WL 4259471 at *6 (D. Ariz. 2014) 22 (an ALJ’s observation regarding lack of atrophy was “consistent with 23 the 24 muscle 25 observations 26 findings” was error). Plaintiff’s exhibit of fact pain levels, particularly given that Plaintiff Compare Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. muscular muscle that atrophy atrophy several weakness;” or any inappropriate physicians nevertheless, regarding “the other where observed ALJ’s significance 27 28 16 physical “no that medical the on absence of an evidence Plaintiff reliance of signs had his of no own those 1 The ALJ also rejected Plaintiff’s statements that he had 2 “difficulty concentrating” based on the ALJ’s own observations of 3 Plaintiff’s conduct during the hearing. 4 has repeatedly condemned so-called “sit and squirm” jurisprudence. 5 Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (“Denial of 6 benefits cannot be based on the ALJ's observation of [the claimant], 7 when [the claimant's] statements . . . are supported by objective 8 evidence.”). 9 does not necessarily render the decision improper. (AR 27). The Ninth Circuit However, inclusion of an ALJ’s personal observations See Verduzco v. 10 Apfel, 11 observations during the twenty-six minute hearing, (AR 38, 58), do 12 not 13 Plaintiff’s 14 wane. 15 Cir. 1984) (“The fact that a claimant does not exhibit physical 16 manifestations of prolonged pain at the hearing provides little, if 17 any, support for the ALJ's ultimate conclusion that the claimant is 18 not 19 credible.”). 20 during the hearing, (AR 52), which, if it alleviated his pain, would 21 likely improve his ability to concentrate. 188 F.3d justify an 1087, 1090 adverse testimony (9th Cir. credibility suggests that 1989). Here, the finding, particularly Plaintiff’s symptoms ALJ’s where wax and (AR 45-47); see Gallant v. Heckler, 753 F.2d 1450, 1455 (9th disabled or that his Additionally, allegations of Plaintiff asked constant to pain stand and are not stretch 22 23 Finally, to the extent that Plaintiff’s pain levels were not 24 substantiated by medical evidence, this finding does not provide an 25 appropriate 26 appropriate reasons to find Plaintiff’s testimony not fully credible. 27 Light, 119 F.3d at 792-793 (“[A] finding that the claimant lacks basis upon which to 28 17 affirm in the absence of other 1 credibility cannot be premised wholly on a lack of medical support 2 for the severity of his pain.”). 3 4 B. The ALJ’s Error Was Not Harmless 5 6 “[H]armless error principles apply in the Social Security . . . 7 context.” 8 (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 9 Cir. 2006)). Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) Generally, “an ALJ’s error is harmless where it is 10 ‘inconsequential to the ultimate nondisability determination.’” Id. 11 (citing Carmickle v. Comm’r Soc. Sec. Admin., 466 F.3d 880, 885 (9th 12 Cir. 2006)). 13 14 The Court cannot conclude that the ALJ’s errors were harmless. 15 The limiting effects of Plaintiff’s pain are directly relevant to 16 assessing 17 finding contributing to the final . . . decision about disability.” 18 See 19 (quoting SSR 96—5p). 20 determination that there was work that he could perform despite his 21 limitations. 22 the 23 determination,” the errors cannot be deemed harmless. 24 466 F.3d at 885. his McCawley ALJ’s RFC. v. A claimant’s Astrue, F. App’x “may be 687, the 689 most (9th critical Cir. 2011) Here, Plaintiff’s RFC was central to the ALJ’s (AR 29-30). errors 423 RFC are Because the Court cannot determine that “inconsequential to the ultimate disability See Carmickle, 25 26 C. Remand Is Warranted 27 28 The decision whether to remand for further proceedings or order 18 1 an 2 discretion. 3 Where no useful purpose would be served by further administrative 4 proceedings, or where the record has been fully developed, it is 5 appropriate to exercise this discretion to direct an immediate award 6 of benefits. 7 further 8 proceedings.”). 9 that further administrative review could remedy the Commissioner’s immediate award of benefits is within the district court’s Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Id. at 1179 (“[T]he decision of whether to remand for proceedings turns upon the likely utility of such However, where the circumstances of the case suggest 10 errors, remand is appropriate. McLeod v. Astrue, 640 F.3d 881, 888 11 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. 12 13 Here, the Court remands because the ALJ did not properly analyze 14 Plaintiff’s credibility. 15 would necessarily be required to find Plaintiff disabled if this 16 deficiency were remedied. The record does not establish that the ALJ Remand is therefore appropriate. 17 18 The Court has not reached issues not discussed supra except to 19 determine that reversal with a directive for the immediate payment of 20 benefits would be inappropriate at this time. 21 issues addressed in this order, the ALJ should consider on remand any 22 other issues raised by Plaintiff, if necessary. 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 19 In addition to the 1 VI. CONCLUSION 2 3 For the foregoing reasons, the decision of the Administrative 4 Law Judge is VACATED, and the matter is REMANDED, without benefits, 5 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 10 11 Dated: May 31, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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